The Ombudsman's final decision
Summary: We cannot investigate Mrs X’s complaint about the Council’s refusal to issue her daughter an Education, Health and Care Plan in 2018 because the issue is late and it would have been reasonable for Mrs X to complain about it sooner. The Council’s decision also carried a right of appeal which it would have been reasonable for Mrs X to use. We will not investigate Mrs X’s more recent complaints about the Council’s handling of her daughter’s educational and special educational needs because there is not enough evidence of fault.
The complaint
Mrs X complains the Council took too long to issue her daughter (Y) an Education, Health and Care (EHC) Plan. She says this left Y without any suitable provision for her special educational needs. She also complains information held by Y’s primary school was not passed to her secondary school, the Council failed to properly consider its responsibilities under Section 19 of the Education Act 1996 and.
Mrs X says these actions have impacted Y’s education, causing anxiety, distress and periods of poor heath. She also claims her own distress, frustration and says she has gone to time and effort to ensure Y has sufficient support for her needs.
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 effect 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 an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended) The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended) 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) The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
How I considered this complaint
I considered information provided by Mrs X and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
We cannot investigate whether the Council was right not to issue Y an EHC Plan in 2018. This is because Mrs X was aware of the issue at the time and it would have been reasonable for her to complain about it sooner. Nearly eight years have passed since the Council’s decision and we could not effectively investigate the issue now. Any complaint about this issue also falls outside our jurisdiction due to Mrs X’s right to take the matter to the Tribunal, as set out at Paragraph 7. We cannot determine whether a council should issue a child an EHC Plan and it would have been reasonable for Mrs X to challenge the Council’s decision with the Tribunal at the time.
We will not investigate Mrs X’s complaint about delay in the EHC Plan process because there is not enough evidence of fault. The law allows the Council a maximum of 20 weeks to complete the process, starting from the date of the application, and the Council met this deadline. We cannot take into account the period from her first application in 2018.
We also cannot look at Y’s schools’ statements that it could meet her needs without an EHC Plan and that it did not pass on information about her special educational needs. These issues concern the actions of the school rather than the Council and they are not subject to investigation as set out at Paragraph 8.
While we could look at Mrs X’s complaint about the Council’s failure to put in place ‘alternative provision’ for Y under Section 19 of the Education Act 1996, I have not seen enough evidence of fault to warrant investigation. It is true that the Council has a duty to provide education under Section 19 but it is not expected to keep a watching brief on every child. Rather, it relies on referrals from a child’s school or someone with parental responsibility to report that a child has been absent from school for one of the reasons listed in Section 19 for more than 15 days. The Council confirms it received no reports from Y’s school or from Mrs X to this effect and it is therefore unlikely we would find fault in the Council’s failure to put alternative provision in place.
Mrs X is also unhappy with the way the Council dealt with her complaint. But it is not a good use of public resources to look at the Council’s complaints handling if we are not going to look at the substantive issue complained about. We will not therefore investigate this issue separately.
Final decision
We will not investigate this complaint. Parts of the complaint fall outside our jurisdiction and I have not seen enough evidence of fault on those issues we could consider, to warrant investigation.
Investigator's decision on behalf of the Ombudsman