Summary: We will not investigate Ms P’s complaint about the Council’s decision to not carry out an Education Health and Care needs assessment. This is because it would have been reasonable for Ms P to have used her appeal rights.

The complaint

1. The complainant, who I will call Ms P, complains about the Council’s decision not to carry out an Education Health and Care (EHC) needs assessment in 2019. Ms P says while the Council later agreed to provide an EHC plan, her son should have received support for his speech and language needs sooner.

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The Ombudsman’s role and powers

2. 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.
3. 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)

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How I considered this complaint

4. I have considered information Ms P has provided in writing and over the phone. I have also considered evidence from the Council.
5. Ms P had an opportunity to comment on my draft decision.

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What I found

Key facts

6. Ms P requested an EHC needs assessment in May 2019.
7. In June 2019, the Council decided not to carry out an EHC needs assessment and gave her appeal rights to the SEND Tribunal. Ms P met with the Council a month later to discuss her son’s support.
8. In September 2019, the Educational Psychologist at Ms P’s son’s school suggested Ms P work with the school to support her son’s speech and language needs for six months. The outcome of that work would then inform a second EHC needs assessment application.
9. In January 2020, Ms P made a second EHC needs assessment application, which the Council accepted. Ms P later appealed the contents of the EHC plan to the SEND Tribunal.

Analysis

10. I will not investigate Ms C’s complaint that the Council refused to carry out an EHC needs assessment. The Council’s decision carried a right of appeal to the SEND Tribunal, and I consider it would have reasonable for Ms P to have used that right of appeal within the time limits after June 2019.
11. Ms P said the Council told her during the meeting in July 2019 she should wait until an Educational Psychologist reviewed her son at school in September 2019. If she remained unhappy, she could backdate her appeal to the SEND Tribunal. The Council told me its staff would not have said Ms P could extend the time she had to appeal as they do not have the authority to do that. Rather she could have made a second application, and if that was rejected, she would have received fresh appeal rights to the SEND Tribunal.
12. I do not consider the Council provided incorrect advice to Ms P about appealing the June 2019 decision. It confirmed the appeal rights in the decision letter. Also, the Council is correct that appeal rights to the SEND Tribunal cannot be backdated. On the balance of probabilities, I believe Ms P misunderstood how to get fresh appeal rights after the Educational Psychologist’s review.

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Final decision

13. I will not investigate this complaint because Ms P had the right to appeal the Council’s decision.

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Investigator's decision on behalf of the Ombudsman