Summary: We will not investigate this complaint about the Education, Health and Care Plan process for the complainant’s child. The delay by the Council did not cause a personal injustice significant enough to warrant us investigating. Miss X has now appealed to a tribunal which places the recent decision outside our jurisdiction.

The complaint

1. The complainant, whom I shall refer to as Miss X, complained about delay following a review of her son’s (Y) Education, Health and Care Plan (EHC Plan). Miss X is unhappy with the content of the EHC Plan the Council eventually issued. Miss X also complains communication from the Council has been poor.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. 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, or
• any injustice is not significant enough to justify our involvement, or
• 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.

4. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
5. 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)
6. 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

7. I considered information provided by the complainant.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. When a council reviews a child’s EHC Plan, it has 12 weeks to complete the process. In this case the Council reviewed Y’s EHC Plan on 02 February 2024. The Council should therefore have completed the process by 26 April. That did not happen and there was an annual review on 09 July. The Council then issued a final EHC Plan on 21 August, which Miss X is unhappy with.
10. The Council therefore took too long to complete the process after the February review. But we will not start an investigation into Miss X’s complaint. There are two reasons for this.
11. Firstly, while the Council was at fault because it failed to meet the twelve-week deadline, the delay and resulting injustice was not significant enough to warrant us investigating. We only investigate where a person has been caused significant personal injustice. While I understand Miss X’s frustrations, that test has not been met. There was no delay by the Council following the July review.
12. The second reason for us not investigating is that it is not for us to take a view on whether the content of the EHC Plan is appropriate. That matter carries a right of appeal to the SEND Tribunal. This is the proper route by which to challenge the content of an EHC Plan. Miss X has used this right.
13. Where appeal rights have been used, the matter is outside our jurisdiction from the point at which the appeal rights were available. As well as the school named in the EHC Plan, we cannot consider how the Council decided the content of the plan. This is because the decision-making is too closely linked to the matter appealed. The SEND Tribunal can decide if the school and content of the EHC Plan should be changed. We cannot. There is no discretion available to us to consider this matter.
14. Miss X says the Council’s communication with her has been poor. The Council has set out its contact with Miss X and the main issue is now the content of the EHC Plan. It is unlikely we could add anything to the response Miss X has already received, and for reasons set out above, the content of the EHC Plan is not for us. An investigation is not therefore appropriate.

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Final decision

15. We will not investigate Miss X’s complaint because the level of fault and injustice is not significant enough to warrant an investigation. An appeal to the SEND Tribunal places recent matters outside our jurisdiction.

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Investigator's decision on behalf of the Ombudsman