Summary: We will not investigate this complaint about the way the Council handled an Education, Health and Care needs assessment. This is because the law says we cannot investigate when a complainant has used their right of appeal to a Tribunal. For the remaining parts of the complaint, there is no worthwhile outcome achievable by our further investigation.

The complaint

1. Ms X complains the Council:
• delayed the Education, Health and Care needs assessment for her Child, Y;
• communicated poorly and failed to provide important information about the support that would be available to Y on starting school;
• issued a draft Education, Health and Care (EHC) Plan on the same day it issued the final Plan; and
• issued a flawed EHC Plan which did not meet Y’s needs.
2. She says Y could not start school without the necessary support of an Education, Health and Care plan or clarification on what would be in place without this. She says she deferred her child starting school, which resulted in Y missing education and prevented her accessing free school meals.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the Tribunal in this decision statement.
6. 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:

• there is not enough evidence of fault to justify investigating, or
• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome, or
• there is no worthwhile outcome achievable by our investigation. (Local Government Act 1974, section 24A(6), section 34(B))

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How I considered this complaint

7. I considered information provided by the complainant.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. In response to Ms X’s complaint, the Council accepted it delayed issuing Y’s EHC Plan by four months. It apologised and offered a symbolic payment of £400 to recognise the injustice caused. We will not investigate this part of the complaint. The Council’s remedy is in line with our guidance, and it is unlikely investigation would achieve anything further.
10. Ms X says the Council’s delays and poor communication meant she had to defer Y starting school by a year. The Council says Ms X asked to defer Y starting school before the deadline for it to issue a draft EHC Plan. It says this means any delay cannot be the cause of Ms X’s decision to defer. Ms X says the Council’s failure to provide timely information about the support Y would receive at school contributed to her decision to defer Y's place.
11. We will not investigate this part of the complaint. This is because there are likely multiple issues which affected Ms X’s decision. Ms X could not expect to know the content of the EHC Plan until two months after the deadline to ask to defer. The evidence from Y’s nursery was that Y was not ready to start school. It is therefore unlikely we could reach a sound finding that any fault by the Council was the primary cause of Ms X’s decision.
12. We will not investigate Ms X’s complaint about how the Council issued the Final Plan. Although issuing the Final Plan the same day was swift, the Council did so after Ms X replied with comments on the draft. It is unlikely an investigation would find fault in the Council’s actions causing any injustice separable from the content of the Plan.
13. The law says we cannot investigate Ms X’s complaint about the content of Y’s EHC Plan. This is because Ms X used her right of appeal to the Tribunal.

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Final decision

14. We will not investigate Ms X’s complaint because there is no worthwhile outcome from a further investigation and for part of the complaint Ms X has used her right of appeal.

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Investigator's decision on behalf of the Ombudsman