The Ombudsman's final decision
Summary: We will not investigate this complaint that the Council delayed assessing a child’s Special Educational Needs, meaning they were in an unsuitable school for eighteen months. This is because the Council’s decisions carried a right of appeal to the Special Educational Needs and Disability Tribunal. There is either insufficient evidence of either fault or significant injustice with other matters raised.
The complaint
The complainant, who I will call Ms X, complains about how the Council dealt with assessments of her son’s Special Educational Needs. Ms X says the Council’s actions has resulted in her son remining in an unsuitable education placement for 18 months.
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: there is not enough evidence of fault to justify investigating, or any fault has not caused injustice to the person who complained, or any injustice is not significant enough to justify our involvement.
(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.
I considered the Ombudsman’s Assessment Code.
My assessment
The Council decided not to carry out an assessment of Ms X’s son’s Special Educational Needs (SEN) in December 2020. Six months later it did decide to carry out an assessment and it issued an Education Health and Care (EHC) plan in September 2021. In October 2021, the Council were asked by the school to carry out an emergency review. It carried out its review within three weeks, and informed Ms X of the outcome five weeks later. Prior to the review being completed, Ms X’s son was permanently excluded from school.
I will not investigate the Council’s decision not to carry out an assessment of Ms X’s son’s SEN In December 2020, or its decision to name a mainstream placement in the EHC plan it issued in September 2021. Both actions carried a right of appeal to the SEND Tribunal, which it would have been reasonable for Ms X to have used at the time.
I will not investigate Ms X’s complaint that there was delay in the assessment process. This is because there is insufficient evidence of fault by the Council. Both the 2020 decision not to assess and the issuing of the EHC plan in 2021 were done so within the timeframes laid out in statutory guidance.
I will not investigate Ms X’s complaint that the Council delayed carrying out an emergency review and delayed informing her of the outcome. There is no statutory timeframe a Council must stick to when arranging an emergency review. In this instance the review meeting was held within three weeks. Ms X was informed of the outcome a week late. I consider it unlikely that further investigation would find fault in how the Council arranged the review and that it is unlikely we would conclude that the delay in informing Ms X of the outcome was long enough to have caused her or her son a significant injustice.
Finally, I will not investigate how the Council dealt with Ms X’s complaint about these matters. This is because it not a good use of public funds to investigate complaint handling when we have decided not to investigate the substantive issues of a complaint.
Final decision
We will not investigate Ms X’s complaint because some of the Council’s actions carried the right of appeal to a tribunal. There is either insufficient evidence of fault or significant injustice regarding other issues raised.
Investigator's decision on behalf of the Ombudsman