The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council failing to consult with Mrs X’s preferred school when issuing an Education Health and Care Plan. This matter is not separable from the school named, in respect of which she has a right to appeal to the Special Educational Needs and Disability Tribunal. There is not enough injustice from a short delay in issuing the Plan to warrant investigation.
The complaint
Mrs X said the Council failed to follow legal requirements by not consulting with her preferred school when issuing an Education Health and Care (EHC) Plan for her child. She also said the Council issued the Plan late, and that her child’s schooling is still not settled.
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 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 the content itself. It would be for a SEND Tribunal to decide the most suitable placement for Mrs X's child.
The correspondence Mrs X provided showed the Council, after emails back and forth as the deadline approached and passed, issued the EHC Plan about 10 days late. This did not significantly delay Mrs X’s right of appeal.
Final decision
We will not investigate Mrs X’s complaint because the matters complained of in terms of consultation are not separable from the content of the EHC plan. Mrs X has a right of appeal to the SEND Tribunal in respect of the school named it would be reasonable to use. The delay in issuing the EHC Plan is unlikely to have created sufficient injustice to warrant investigation.
Investigator's decision on behalf of the Ombudsman