Summary: We will not investigate Miss X’s complaint about Education Health and Care Plan delays. The Council has paid Miss X a lump sum for the delays. And it is reasonable to expect Miss X to have appealed the named educational setting to the Tribunal.

The complaint

1. Miss X says the Council delayed in issuing an Education Health and Care Plan (EHC Plan). She says the EHC Plan does not name a suitable setting for her child, B’s, education.

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The Ombudsman’s role and powers

2. 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)
3. 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.
4. 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

5. I considered information provided by Miss X and the Council’s replies to her.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Miss X says her child’s, B, EHC Plan process took over two years. She complained to the Council in July 2024. In reply to Miss X’s complaint it said:
1. B’s school requested an EHC Plan needs assessment in November 2022.
2. It produced a final EHC Plan in November 2023.
3. It was not completed within the statutory timeframe because of a shortage of educational psychologists.
4. It has offered £1450 for the delay.
5. During 2024 there had been consultations and discussions about alternative schools. B has been attending a school with an attendance rate around 76%.

Analysis

8. Miss X disputes the school B has been attending is suitable for their needs. It is reasonable to expect Miss X to have appealed to the Tribunal the November EHC Plan if she wanted another type or a specific school named.
9. We cannot look at the suitability of the school B has attended since November 2023 because this should have been the subject of a Tribunal appeal.
10. The Council’s payment of £1450 for an eight month delay in issuing the EHC Plan is more than our usual recommendations for a symbolic payment to recognise the frustration and uncertainty caused to the family by EHC Plan delay of eight months. We are unlikely to achieve more.

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Final decision

11. We will not investigate Miss X’s complaint because it is reasonable to expect her to have appealed to the Tribunal. And we are unlikely to achieve more than the Council’s recent payment for the EHC Plan production delay.

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Investigator's decision on behalf of the Ombudsman