The Ombudsman's final decision
Summary: We will not investigate this complaint about how the Council carried out an annual review of a child’s Education Health and Care plan. This is because we could not add to the investigation carried out by the Council and because the complainant has used, or could have used, their right of appeal to the SEND Tribunal.
The complaint
Mrs X complains about how the Council carried out a review of her child’s Education Health and Care (EHC) plan. Mrs X complains that the Council delayed issuing a draft and final plan, that the Council included irrelevant information in the plan, that the Council failed to include recommended provision and failed to properly consult with schools. Mrs X also complains about how the Council dealt with her complaint about these matters.
The Ombudsman’s role and powers
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: any injustice is not significant enough to justify our involvement, or we could not add to any previous investigation by the organisation.
(Local Government Act 1974, section 24A(6), as amended, section 34(B)) The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), 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) 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.
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
When children with EHC plans transfer to secondary school, any amendments to their EHC plan must be completed by 15 February in the calendar year in which they are due to transfer to their new school.
Mrs X’s child is due to start secondary school this year. The Council carried out a review of their EHC plan in June 23 but did not advise Mrs X that it intended to make amendments until December. The Council apologised for this delay. A final EHC plan was issued on 24 February naming a type of school in Section I. Mrs X appealed Section I to the SEND Tribunal.
I will not investigate Mrs X’s complaint about delays to the review process. The Council apologised to Mrs X for its delays informing her of the amendments to her child’s EHC plan. This is a reasonable response and we could therefore not add to the Council’s investigation into this point. The final plan should have been issued on 15 February but was not done so for nearly 2 weeks after that date. Whilst I acknowledge that this would have caused a certain amount of frustration, I do not consider that the length of delay was long enough to have caused a significant enough injustice to warrant investigation.
I cannot investigate how the Council carried out consultations with school. This is because this is not separable from Mrs X’s appeal to the SEND Tribunal which is considering what school should be named on the EHC plan. I will also not investigate Mrs X’s complaint that provision recommended at review wasn’t included in the EHC plan. This is because Mrs X also had the right of appeal against other sections of the plan which it would have been reasonable for her to have used.
Finally, I will not investigate how the Council dealt with Mrs X’s complaints about these matters. This is because it is not a good use of public funds to investigate complaint handling in isolation when we have decided not to investigate the substantive issues raised in a complaint.
Final decision
We will not investigate Mrs X’s complaint because we could not add to the investigation carried out by the Council and because Mrs X has either used her right of appeal to the SEND Tribunal or could have reasonably used that right of appeal.
Investigator's decision on behalf of the Ombudsman