The Ombudsman's final decision
Summary: We cannot investigate parts of this complaint because it would overlap with the role of Tribunal. We have upheld Mrs X’s complaint about the delay in carrying out the Educational and Health Care Assessment and issuing an Education and Health Care Plan because the Council has agreed to resolve the complaint early by providing a proportionate remedy for the injustice caused to Mrs X.
The complaint
Mrs X complains the Council failed to obtain advice from relevant specialists when carrying out an Education and Health Care Needs Assessment (ECHNA) for her child.
Mrs X also complains the draft Education and Health Care Plan (EHCP) was vague and unquantified. She says the Council did not respond to her requests to discuss the draft EHCP or her request for mediation.
She says the Council’s communication was poor and its complaint response did not properly investigate her complaint.
She says these failings caused delay, denied her parental rights and resulted in an inadequate EHCP. She says her child has lost educational opportunity and suffered stress from unmet needs and she has been unable to plan for their next phase of education.
She would like the Council to: include specialist recommendations in the EHCP amend the EHCP so needs and provision are specific, measurable, quantified and time-bound acknowledge that it failed to follow statutory procedures, communicate effectively and avoid unnecessary delay and distress.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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) We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we are satisfied with the actions an organisation has taken or proposes to take. (Local Government Act 1974, section 24A(7), as amended) 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)) Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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 complains: the Council did not seek advice from relevant specialists when undertaking her child’s ECHNA, the draft EHCP was vague and unquantified, and the Council did not respond to her requests to discuss the draft plan and for mediation.
We cannot investigate these parts of Mrs X’s complaint because our investigation would overlap with the role of the First-tier Tribunal (Special Educational Needs and Disability).
Mrs X complained the Council’s communication was poor and its complaint response did not properly investigate her complaint.
However, it is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.
Mrs X also complained about delays in the ECHNA process and in issuing the final EHCP.
If we investigated this aspect of Mrs X’s complaint, it is likely we would find the Council at fault because of the frustration and uncertainty caused by the delays.
We therefore asked to the Council to consider remedying the injustice caused by its actions.
To its credit the Council agreed to resolve this aspect of the complaint and will take the following action within four weeks of this decision: writing to Mrs X to apologise for the frustration and uncertainty caused by the delays in the EHC process pay £100 per month of delay. This will be calculated from the date the decision to issue the plan should have been made had there not been delays to the date the final plan was issued.
Final decision
We will cannot investigate parts of Mrs X’s complaint because it would overlap with the role of Tribunal.
We have upheld Mrs X’s complaint about delay in carrying out the ECHNA and issuing an EHCP because the Council has agreed to resolve the complaint early by providing a proportionate remedy for the injustice caused to Mrs X.
Investigator's decision on behalf of the Ombudsman