Summary: We will not investigate Miss X’s complaint about delays in the review of her child, Y’s, Education, Health and Care (EHC) Plan. This is because the complaint is late. In addition, Miss X had a right of appeal to the SEND Tribunal about the content of the EHC Plan. The Council also apologised for poor communication.

The complaint

1. Miss X complains the Council:
• delayed finalising her child, Y’s, Education, Health and Care (EHC) Plan following an emergency annual review in September 2022;
• named an unsuitable school in Y’s EHC Plan; and
• failed to communicate with both her and a new school named in Y’s EHC Plan in July 2023.
2. Miss X says the issues caused her distress and frustration.
3. Miss X wants the Council to improve its services.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)
6. 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:

• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint.

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

7. 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)
8. 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.

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How I considered this complaint

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

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My assessment

11. In September 2022 Y’s school, school Z, held an emergency annual review of Y’s EHC Plan.
12. In June 2023 the Council sent Miss X a final amended copy of Y’s EHC Plan. The EHC Plan named a new school, school A, in section I.
13. Later that month, Miss X complained to the Council. Her complaint included issues relating to the delay in completing the EHC review process, about the Council’s poor communication regarding school consultations, and about the content of Y’s EHC Plan including sections B, F, and the named school under section I.
14. The Council responded to Miss X at stage one of its process in mid-July 2023. It explained part of the reason for the delay in completing the EHC review was because Y’s original school did not send the annual review paperwork on time. It explained it had consulted with several schools, but ultimately decided to name school A in the EHC Plan.
15. Miss X asked the Council to escalate her complaint. She repeated her concerns about delays in the EHC review process, said the EHC Plan did not meet Y’s needs, and complained about the Council’s consultations with schools during the EHC review process.
16. Miss X also complained the Council named school A in the EHC Plan but had failed to communicate with school A about the matter and school A did not know it was named in Y’s EHC Plan.
17. Miss X requested the Council engage in mediation to resolve the disagreements about the content of Y’s EHC Plan.
18. The Council responded to Miss X’s complaints at stage two of its process. It told Miss X it was sorry for the delays in issuing the final EHC Plan. It said there had been an administrative error which meant school A did not receive the notification that it had been named in Y’s EHC Plan. It apologised for this, but said Y was able to start school in September 2023 in any case. It also apologised for its poor communication about the process of changing the named school in section I. It said it had consulted with schools in line with its duties.
19. In November 2023 Miss X and the Council engaged in mediation. This resulted in a mediation agreement which included agreed changes to sections B and F of Y’s EHC Plan.

Analysis

Delay in EHC annual review September 2022

20. We will not investigate Miss X’s complaint about delays in the EHC annual review which started in September 2022. This is because the complaint is late. The law which sets out the Ombudsman’s powers says a person should bring a complaint to us within 12 months of knowing about the issue. Miss X brought her complaint to the Ombudsman in mid-July 2024.
21. The Council should have completed the annual review process within 12 weeks of the annual review – by early December 2022. I have seen no good reason Miss X could not have raised a complaint with the Council and subsequently the Ombudsman sooner. Therefore, we will not investigate this complaint.

School consultations and content of Y’s EHC Plan

22. We will not investigate Miss X’s complaints about how the Council consulted with schools during the EHC review process, or about the content of Y’s EHC Plan.
23. As above, the complaint is late. The matters Miss X complained about happened more than 12 months before she brought the complaint to the Ombudsman.
24. Even if the complaint was not late, we would not investigate these matters. The consequence of Miss X’s alleged fault is the content of the EHC Plan, including sections B, F, and the named school in section I, does not reflect her child’s needs. Miss X and the Council engaged in mediation. The outcome of mediation was to change the content of the EHC Plan. This is the correct process.
25. If Miss X remained dissatisfied with the outcome of mediation, she had a right to appeal the matter to the SEND Tribunal. The Ombudsman cannot direct changes to the sections about needs, education, or the name of the educational placement in an EHC Plan. Only the Tribunal or the Council can do this. Therefore, it is reasonable to have expected Miss X her to use her right of appeal if she remained dissatisfied with the outcome, and so we will not investigate these matters.

Poor communication with school A

26. The Council accepted fault for poor communication with Miss X and school A. It apologised, but explained Y was still able to start school in September 2023. As the Council already accepted fault and apologised, further investigation by the Ombudsman is unlikely to achieve any additional outcome, and so we will not investigate this complaint.

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Final decision

27. We will not investigate Miss X’s complaint because most of the complaint is late. In addition, Miss X had a right of appeal to a Tribunal, and an investigation into the remaining issues is unlikely to achieve any additional outcome.

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Investigator's decision on behalf of the Ombudsman