The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s delay completing the Education, Health and Care plan process. This is because any injustice is not significant enough to warrant an investigation.
The complaint
Miss X complained the Council delayed completing an Education, Health and Care reassessment for her child Y when they moved to its area. Miss X says the Council also failed to complete Y’s annual review and caused delays in the tribunal process.
Miss X want’s the Council to apologise and repay her for the cost of a private Educational Psychology Assessment.
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 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.
(Local Government Act 1974, section 24A(6), as amended, section 34(B)) We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) 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)
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
A parent may ask a council to reassess their child’s Education, Health and Care Plan (EHC Plan). However, the documents on this case show Miss X did not request a reassessment and so the law governing these do not apply.
When moving to a new area, the new council must review the EHC Plan within 12 months of the last review, or within 3 months of the move. Miss X and her son, Y moved into the area in August 2023, so the Council needed to review the Plan by November 2023.
The Council did not review Y’s Plan until January 2024. It has since apologised for the delay and taken action to prevent recurrence. On comparing Y’s previous EHC Plan with the latest draft, I can see no substantive changes in provision. I therefore consider any injustice is not significant enough to warrant an investigation.
The Council agreed to complete a new Educational Psychology (EP) assessment in August 2023. However, the Educational Psychologist said it would not complete this while there was an ongoing tribunal appeal and to allow Y to settle into their new school. The Council also explained to Miss X that it would not pay for a private EP assessment in the meantime.
It is not the Ombudsman’s role to criticise or overrule professional judgment. Instead, our role is to consider how the Council made its decision. In this case, the Council was satisfied it was appropriate to follow the advice given. We could not criticise, or find fault with, the Council’s properly made decision just because Miss X disagrees with the decision. And the Council was not otherwise responsible for paying the costs of an EP assessment.
I cannot investigate complaints about professional reports and provision made under Y’s previous EHC Plan as Miss X has appealed the contents of this Plan to Tribunal. I also cannot investigate complaints about the Council’s conduct during Tribunal proceedings as that is a matter for the Tribunal.
Final decision
We will not investigate Miss X’s complaint of delay in the EHC process as any injustice is not significant enough.
Investigator's decision on behalf of the Ombudsman