The Ombudsman's final decision
Summary: Ms X complained the Council failed to secure the provision in her son’s Education Health and Care plan and refused to investigate her complaint about this. The Council has agreed to Ms X’s complaint so we ended our investigation.
The complaint
Ms X complained the Council failed to secure the provision in her son’s Education Health and Care plan after it amended the plan in July 2021. As a result, Ms X said her son has gone without the support he needs and she had to fund some of the support herself.
Ms X also complained the Council wrongly refused to investigate her complaint about the lack of provision.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we are satisfied with the actions a council has taken or proposes to take. (Local Government Act 1974, section 24A(7), as amended) If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
I considered the information Ms X provided and the Council’s comments on the complaint.
Ms X and the organisation had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
What I found
Education Health and Care plans A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them.
The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to: check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement; check the provision at least annually via the review process; and investigate complaints or concerns that provision is not in place at any time.
Councils must review EHC plans at least every 12 months.
What happened Ms X complained to the Council in October 2021 that it had failed to secure the provision in her son’s Education Health and Care plan.
The Council told Ms X it would not investigate her complaint and it would, instead, consider her concerns at the next annual review.
Ms X complained to the Ombudsman in March 2022 after making further attempts to get the Council to investigate her complaint.
In response to contact from the Ombudsman, the Council agreed to investigate Ms X’s complaint.
Ending our investigation We generally expect councils to investigate complaints or concerns that EHC provision is not in place or otherwise not being provided.
Although the Council originally refused to do this, it has now agreed to investigate Ms X’s complaint.
The Council is best placed to investigate whether the provision in Ms X’s son’s EHC plan has been provided. The Council can also consider, during its investigation, whether any delays in investigating have had an impact on Ms X or her son.
Since the Council has confirmed it will investigate Ms X‘s complaint, I intend to end my investigation.
If Ms X is not satisfied with the Council’s investigation, she can complain about this further to the Ombudsman.
Agreed action
The Council has agreed to investigate Ms X’s complaint under stage two of its complaints procedure.
Final decision
I have ended my investigation now that the Council has agreed to investigate Ms X’s complaint itself.
Investigator's decision on behalf of the Ombudsman