Summary: We will not investigate Ms X’s complaint about an Education Health and Care Plan delay as it is not significant enough fault. It is reasonable to expect Ms X to appeal to the Tribunal over its content and to approach the Information Commissioner’s Office about a failure to supply documents complaint.

The complaint

1. Ms X says the Council failed to provide documents she wanted, delayed in issuing an Education Health and Care Plan (EHC Plan) and issued an inaccurate EHC Plan.

Back to top

The Ombudsman’s role and powers

2. 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. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
3. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
4. 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)

Back to top

How I considered this complaint

5. I considered information provided by Ms X and the Council.
6. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

7. Ms X’s child, Y, has an EHC Plan. Y was due to transition to senior school in September 2024. The Council issued its EHC Plan setting out the senior school provision in February 2024. This was six days later than the EHC Plan Code says it should have been. This delay is not significant enough to justify an investigation or a remedy.
8. Ms X says the EHC Plan is not accurate.
9. There is a right of appeal to the Tribunal against the description of a child or young person’s special educational provision (SEN), the SEN specified, the school or placement or that no school or other placement is specified. Parliament set up the EHC Plan Tribunal appeal process to deal with disputes about an EHC Plan wording. It is reasonable to expect Ms X to have used that process if she did not agree with the EHC Plan.
10. Ms X says she asked the Council to provide her with SEN documents relating to Y. She says it failed to do so. Ms X has the right to ask that documents are disclosed to her. This is called a ‘subject access request’ (SAR). If the Council refuses to do so, she can complain to the Information Commissioner’s Office (ICO). Parliament set up the ICO to consider data protection disputes which includes SAR disputes. The ICO are better placed than us to consider if the Council should disclose the documents Ms X wants or wanted.

Back to top

Final decision

11. We will not investigate Ms X’s complaint because it is unlikely we would find significant fault in the delayed issuing of an EHC Plan. It is reasonable to expect Ms X to have appealed to the Tribunal about the EHC Plan wording and to approach the ICO about a data protection issue.

Back to top

Investigator's decision on behalf of the Ombudsman