Summary: We will not investigate Mrs X’s complaint about the Council’s handling of her request for an Education, Health and Care Plan. It was reasonable for Mrs X to use her right of appeal. Subsequent delays by the Council and issues with communication did not cause a personal injustice significant enough to warrant our involvement.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complained about the Council’s handling of her request it assess her child for an Education, Health and Care Plan (EHC Plan). Mrs X is unhappy the Council refused her original request and says there were then delays in the process. Mrs X also says communication from the Council has been poor.

Back to top

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. 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)
4. 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.
5. 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 any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

Back to top

How I considered this complaint

6. I considered information provided by the complainant and the Council.
7. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

8. We will not start an investigation into Mrs X’s complaint.
9. The Council’s initial decision not to assess her child for an EHC Plan is one which carried a right of appeal to the SEND Tribunal. It is the process set up by Parliament for parents to challenge such decisions. It was reasonable for Mrs X to use this right of appeal. The Council’s original decision not to assess her child for an EHC Plan is not therefore one we will consider.
10. The Council then revised its decision without the need to proceed to the SEND Tribunal. The Council eventually issued an EHC Plan - albeit slightly late. The injustice from this delay is not significant enough to warrant investigation by the Ombudsman. This also applies to Mrs X’s complaint that communication from the Council has been poor.

Back to top

Final decision

11. We will not investigate Mrs X’s complaint. It was reasonable for Mrs X to use her right of appeal and the injustice from the rest of the complaint is not significant enough to warrant an investigation.

Back to top

Investigator's decision on behalf of the Ombudsman