The Ombudsman's final decision
Summary: We will not investigate this complaint about how the Council managed the transfer process for Mr X’s child’s Education Health and Care Plan. How the Council arrived at its decision is not separable from the decision it reached, in respect of which Mr X has used his right of appeal to the Special Educational Needs and Disability Tribunal. The injustice caused by a delay of one week in issuing the final Plan is not enough to warrant investigation.
The complaint
Mr X said the Council’s service in dealing with his child’s Education Health and Care Plan transfer review was unsatisfactory, with the Council not following its own processes. He said communication has been poor, and the Council has not explained what went wrong and why the wrong decision was made, causing him to have to appeal to the Special Educational Needs and Disability Tribunal.
The Ombudsman’s role and powers
The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended) The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
The Ombudsman investigates 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 may decide not to continue with an investigation if we decide: any fault has not caused injustice to the person who complained, or any injustice is not significant enough to justify our involvement.
(Local Government Act 1974, section 24A(6))
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
How the Council arrived at the content of the EHC Plan it issued is not separable from that content. The delay of about a week over the deadline for issuing an EHC Plan where a child is transferring school is unlikely to have caused significant injustice.
Final decision
We will not investigate Mr X’s complaint because: The matters complained of are not separable from the content of the EHC Plan, against which Mr X has exercised his right of appeal to the SEND Tribunal; and The delay of about a week in issuing the Plan is unlikely to have caused enough injustice to warrant investigation.
Investigator's decision on behalf of the Ombudsman