Summary: We will not investigate Mrs X’s complaints about her child, Y’s, Education, Health and Care Plan or about delays in the Council’s complaint responses. This is because the complaint is late. In addition, the Council has already offered a suitable remedy for part of the complaint, and an investigation by the Ombudsman is unlikely to achieve anything further.

The complaint

1. Mrs X complained:
• the Council failed to communicate with her effectively about her child, Y’s, Education, Health and Care (EHC) Plan;
• about the content of Y’s Education, Health and Care (EHC) Plan and Y’s EHC assessment; and
• about delays in the Council’s response to her complaints.
2. Mrs X says the issues caused her distress and frustration.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. 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.
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. 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:

• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

8. I considered information provided by the complainant and the Council.
9. I considered the Ombudsman’s Assessment Code.

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My assessment

10. Mrs X complained to the Council in April 2022. She told the Council she was dissatisfied with its communication with her about her child, Y’s, EHC needs assessment. She said the Council also delayed issuing the draft EHC Plan and said delays in the process meant Y missed out on an educational placement at a school of her choice.
11. The Council issued a final EHC Plan for Y. It named a mainstream school in section I. Mrs X appealed the content of the EHC Plan to the SEND Tribunal because she wanted Y to attend a special school.
12. The Council conceded before the Tribunal was held and named Mrs X’s preferred school in Y’s EHC Plan.
13. The Council responded to Mrs X’s complaint in August 2022. It explained its decision-making and said the timescales for the EHC process were adhered to aside from the final EHC Plan, which was ready on time but not issued at Mrs X’s request to try to resolve the issue of the school named in the EHC Plan.
14. In September 2022 Mrs X asked the Council to escalate her complaint to stage two of its complaints process.
15. The Council responded at stage two of its complaints process in May 2024. It told Mrs X it was sorry for the delay in responding to her complaints. It acknowledged it had not communicated with her effectively in early 2022 about the EHC process. It said Mrs X had used her right of appeal to the SEND Tribunal about the content of the Plan, but the Council conceded and named her preferred school of choice, which Y started at in September 2022. The Council said it would send an apology letter and pay Mrs X £1,000 in acknowledgement of the distress and time and trouble caused by the delays in the complaints process.
16. The Council sent the apology letter in June 2024 and paid Mrs X the £1,000 financial remedy in July 2024.

Analysis

EHC assessment process and EHC Plan 2022

17. We will not investigate Mrs X’s complaints about issues relating to Y’s EHC Plan or the EHC needs assessment. The primary issues took place in early 2022, and the law says we cannot investigate complaints older than 12 months unless we decide there are good reasons.
18. Where a council fails to respond to a complaint within 12 weeks of a person making a complaint, the Ombudsman’s approach is to consider whether to exercise discretion to investigate the complaint at that time, or to ask the Council to provide a response to the complaint within a set timeframe. Mrs X requested a stage two escalation in September 2022. She came to the Ombudsman in June 2024. I have seen no good reasons Mrs X could not have brought the complaints to the Ombudsman sooner, and so we will not investigate these complaints.
19. Even if the complaints were not late, we could not investigate most of Mrs X’s complaints about the EHC needs assessment process or the decision to name the mainstream school in section I of Y’s EHC Plan. This is because Mrs X used her right of appeal to the SEND Tribunal about the content of Y’s EHC Plan, and the law says we cannot investigate where someone has appealed a decision to a Tribunal. Any disagreements about the content of the EHC Plan, including the named school or the adequacy of any professional reports, were or could have been included in the appeal. Therefore, we could not investigate these matters in any case.

Delay in the complaints process

20. As explained above, Mrs X’s complaint to the Ombudsman is late.
21. The Council sent a final complaint response in May 2024, approximately 20 months after Mrs X’s stage two request. In its response, the Council accepted fault for the delays, apologised to Mrs X, and paid her a £1,000 symbolic payment in acknowledgement of the frustration and time and trouble it caused.
22. The Council’s remedies are in line with the Ombudsman’s Guidance on Remedies. It is unlikely further investigation would lead to any additional outcome. Therefore, we will not investigate this matter further.

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Final decision

23. We will not investigate Mrs X’s complaints because the complaints are late. In addition, the Council has already offered a suitable remedy for the delay in its complaint response and an investigation by the Ombudsman is unlikely to achieve any additional outcome.

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Investigator's decision on behalf of the Ombudsman