The Ombudsman's final decision
Summary: We will not investigate this complaint about delays issuing an Education Health and Care plan This is because it is unlikely we could achieve a different remedy than already offered and therefore further investigation would not lead to a different outcome.
The complaint
The complainant, who I will call Mrs X, complains that the Council delayed issuing an Education Health and Care (EHC) plan for her daughter, meaning she missed out on suitable education and subsequently named a school that could not meet her needs.
The Ombudsman’s role and powers
The Ombudsman investigates 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 may decide not to continue with an investigation if we decide further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6)) The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended) 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.
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Mrs X asked the Council to assess her daughter, D, for an EHC plan in September 2021. The Council did so and issued a final plan in June 2022, naming a mainstream school. The Council accepted that it had delayed issuing D’s EHC plan and therefore delayed providing her with an appropriate education for four and a half months.
The Council apologised and offered Mrs X a payment of £2025 for the delay to D’s education and a payment of £250 for the time and trouble Mrs X had been too raising her complaint.
Mrs X says the Council should have named a different school on D’s EHC plan and that she is unable to attend the mainstream school. The Council has arranged a review of the plan to take place in the coming weeks.
I will not investigate Mrs X’s complaint. This is because the payment offered by the Council to remedy the injustice its delay caused D and Mrs Z is in line with our Guidance on Remedies. Therefore, I do not consider that further investigation would lead to a different outcome.
I will not investigate Mrs X’s complaint that the Council named an unsuitable school on D’s EHC plan. This is because she had a right of appeal against the Council’s decision to the SEND Tribunal. It would have been reasonable to have used this right of appeal at the time.
Upon becoming aware that D was not attending school, the Council arranged a review of D’s education and SEN provision which is due to take place in the coming weeks. It would not be appropriate to intervene whilst this process is underway. Any changes the Council decides to make to D’s EHC plan will carry a right of appeal to the SEND Tribunal.
Final decision
We will not investigate Mrs X’s complaint because further investigation would not lead to a different outcome.
Investigator's decision on behalf of the Ombudsman