The Ombudsman's final decision
Summary: We cannot investigate this complaint about refusal to conduct an Education Health and Care Needs Assessment because Mrs X has appealed to tribunal. We will not investigate this complaint about alternative provision because we are unlikely to find fault.
The complaint
Mrs X complains the Council has failed to meet its statutory duties to her child.
She also complains the Council has not properly handled her complaints.
She says as a result her child has been left without support they are legally entitled to. Mrs X says she has suffered stress and her health has deteriorated because of the worry and pressure. Her child has become traumatised, withdrawn and regressed emotionally.
She would like the Council to put provision in place for her child, review its processes and provide remedies for the distress caused to her child and the family.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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) 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 cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended) 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 there is not enough evidence of fault to justify investigating.
(Local Government Act 1974, section 24A(6), as amended, section 34(B))
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 refused to undertake an Education Health and Care Needs Assessment (ECHNA) for her child. She says the Council said this was due to information provided by her child’s school. The restrictions in paragraph eight prevent us from investigating this aspect of Mrs X’s complaint.
Mrs X appealed to the First-tier Tribunal (Special Educational Needs and Disability). The Council agreed to conduct a ECHNA. Mrs X complains this delayed her child’s assessment. We cannot investigate this part of Mrs X’s complaint because she used her right to appeal to the tribunal.
Mrs X complains the Council did not meet its Section 19 duties to her child.
If a council discovers a child is absent from school for an extended period, it should consider the reasons for this and take account of evidence from relevant parties (such as the child’s school, parents, and medical professionals). It must then decide whether it has a duty to make alternative educational provision.
The Council worked with the school to support Mrs X’s child’s attendance. Later, arrangements were made for the child to attend an alternative provision. Although, the child initially only attended for limited hours, the provision continued to work with Mrs X and her child to gradually increase attendance. The Council has continued to monitor this support.
Our role is not to ask whether an organisation could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
The Council was entitled to use its professional judgement to decide whether it had a duty to provide alternative education provision and the Ombudsman cannot question this decision unless it was tainted by fault. As the Council properly considered the reasons for Mrs X’s child’s absence and took steps to support attendance, I consider it unlikely that we would find fault.
Mrs X also complains the Council has not properly handled her complaints.
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.
Final decision
We cannot investigate Mrs X’s complaint about refusal to conduct an Education Health and Care Needs Assessment because Mrs X has appealed to tribunal. We will not investigate Mrs X’s complaint about alternative provision because we are unlikely to find fault.
Investigator's decision on behalf of the Ombudsman