The Ombudsman's final decision
Summary: We will not investigate this complaint about delays issuing a final Education Health and Care plan for a young person transitioning to post-16 education and refused a request for a personal budget. This is because the delay was not significant enough to justify investigation, and the Council’s decision not to award a personal budget is not separable from an appeal made to the SEND Tribunal.
The complaint
Mrs X complains that the Council delayed issuing a final Education Health and Care (EHC) plan for her son’s transition to post-16 education. Mrs X also complains that the Council refused her request for a personal budget for additional provision.
The Ombudsman’s role and powers
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)) 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) 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
For young people moving from secondary school to post-16 education, the council must review and amend an EHC plan by 31 March in the calendar year of the transfer. In this case the Council issued its final plan on 16 April.
I will not investigate Mrs X’s complaint. Whilst I acknowledge that the Council delayed issuing its final plan and therefore this frustrated Mrs X’s appeal. I do not consider that the delay was sufficient to have caused Mrs X or her son a significant enough injustice to warrant investigation.
I cannot investigate Mrs X’s complaint that the Council refused her request for a personal budget for additional provision. The Council decided not to include the provision in final EHC plan. Mrs X has appealed this decision to the SEND Tribunal and the law prevents us from investigating complaints about matters that have been appealed at tribunal. The Council’s decision not to award a personal budget is not separable from the appeal.
Final decision
We will not investigate Mrs X’s complaint because the delay did not cause a significant enough injustice to warrant investigation and the issue of provision has been appealed to the SEND Tribunal.
Investigator's decision on behalf of the Ombudsman