The Ombudsman's final decision
Summary: We will not investigate this complaint about the decision not to issue an Education Health and Care Plan for the complainant’s daughter, and the subsequent delay in doing so. The complainant used her right to appeal to a tribunal about the initial decision, and it is unlikely we could add anything significant to the response the Council has already made.
The complaint
The complainant, who I will refer to as Mrs B, complains that the Council was at fault in its initial assessment of her daughter’s special educational needs and in delaying the issue of her Education Health and Care Plan (EHCP).
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (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 we could not add to any previous investigation by the organisation. (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
Mrs B’s daughter has special educational needs. The Council issued her EHCP in October`2022.
Mrs B complains that the Council was at fault in the process of her daughter’s Education and Health Needs Assessment (EHCNA) in 2021. She says the Council’s failure to obtain the appropriate reports led to an unreasonable decision to decline to issue an EHCP. She appealed against this decision to the SEND Tribunal.
The appeal process was ended in November 2021 with a Consent Order, under which the Council agreed to issue an EHCP within the statutory timetable. However, the EHCP was subject to significant delay and was not issued in final form until October 2022.
In its response to Mrs B’s complaint, the Council has accepted that it was at fault in failing to issue the EHCP on time. It has apologised, offered a financial settlement amounting to £900 and set out actions it intends to take to address the failings it has identified.
The Ombudsman cannot investigate Mrs B’s complaint about the EHCNA in 2021. The outcome of the fault she alleges was the decision to refuse to issue an EHCP. Mrs B used her right to appeal to the SEND Tribunal. This places all aspects of the EHCNA outside the Ombudsman’s jurisdiction. There is no discretion available to us on this matter.
We will not investigate the delay in issuing the EHCP following the consent order because it is unlikely we could add anything significant to the investigation the Council has already carried out. The Council accepts it was at fault and has proposed a reasonable remedy. Our involvement is not warranted.
Final decision
We will not investigate Mrs B’s complaint. Her complaint about the 2021 decision to refuse to issue an EHCP falls outside our jurisdiction, and we could add nothing significant by investigating the subsequent delay.
Investigator's decision on behalf of the Ombudsman