Summary: We will not investigate this complaint about the Education, Health and Care Plan process. Mrs X’s appeal to the Tribunal places most of the complaint outside our jurisdiction. The Council’s delay in reaching a decision did not cause an injustice significant enough to warrant an investigation.

The complaint

1. The complainant, Mrs X, complained about the Council’s handling of her request it issue her child (Y) with an Education, Health and Care Plan (EHC Plan). Mrs X says the Council failed to seek appropriate advice and did not meet the timescales in the SEN Code of Practice. Mrs X says the Council’s decision not to issue Y with an EHC Plan has forced her to appeal to the Tribunal.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
4. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
5. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

6. I considered information provided by the complainant and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. We will not start an investigation into Mr X’s complaint.
9. The issue at the heart of this case is the Council’s decision not to issue Mrs X’s child with an EHC Plan. Mrs X disagrees with that decision and how the Council reached it.
10. Parents who are unhappy with a council’s decision not to issue their child with an EHC Plan have a right of appeal to the Tribunal. Mrs X has used this right. The law is clear that when a parent has appealed, we have no powers to consider the matter put to the Tribunal – in this case the refusal to issue an EHC Plan. We also have no powers to consider any closely related matters, such as the Council’s decision-making. This includes the experts the Council chose to instruct and any assessments carried out. We cannot therefore consider this part of Mrs X’s complaint.
11. We could consider the delay part of Mrs X’s complaint because it concerns matters which occurred before Mrs X had a right of appeal. But the delay by the Council in taking a decision was less than a month. That is not an injustice significant enough to warrant us investigating.

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Final decision

12. We will not investigate Mrs X’s complaint. Her appeal to the Tribunal places much of the complaint outside our jurisdiction and the injustice caused by the delay is not significant enough to warrant our involvement.

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Investigator's decision on behalf of the Ombudsman