Summary: We will not investigate this complaint that the Council failed to issue the complainant’s child’s Education Health and Care plan within the statutory timescale, and failed to make alternative provision for him while he was out of school. Our intervention would not lead to a different outcome and is not therefore warranted.

The complaint

1. The complainant, Ms X, complains that the Council failed to issue her son’s Education Health and Care (EHC) plan within the statutory timescale, and failed to discharge its duty to make alternative provision for him while he was out of school.

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The Ombudsman’s role and powers

2. 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)

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How I considered this complaint

3. I considered information provided by the complainant and the Council.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. Ms X’s son has special educational needs and an EHC plan. Ms X says, and the correspondence she has provided confirms, that the process of issuing the EHC plan was subject to significant delay.
6. Ms X says that, while the Council was assessing her son’s special educational needs, its duty under section 19 of the Education Act 1996 to make alternative provision for him was engaged. She complains that the Council failed to discharge this duty. As a result, her son was denied appropriate educational provision.
7. We will not investigate Ms X’s complaint. The correspondence shows that the Council has upheld her complaint about the delay in issuing the EHC plan. The Ombudsman will not normally investigate complaints which have already been upheld. It is not a good use of our resources to do so. The question for us is whether our intervention is likely to lead to a different outcome. That is not the case here.
8. In recognition of its fault, the Council has offered to pay Ms X £100 for each month of the delay, a total of £1600, as well as £500 in recognition of failures in communication during the process. This remedy is in line with what the Ombudsman would be likely to seek to achieve in the circumstances of the case, and we would not seek a different outcome. Our intervention is not therefore warranted.
9. Regarding Ms X’s complaint about the failure to make alternative provision, it is not for the Ombudsman to take a view on whether the section 19 duty is engaged. That is for the Council to decide. The question for us is whether there is evidence of fault in the way the Council considered the matter. There is no such evidence.
10. The Council contends that, in offering a mainstream school place while Ms X’s child’s special educational needs were being assessed, it was meeting its duty to provide access to appropriate educational provision. That is not a demonstrably unreasonable decision, and there is nothing to suggest fault in the way it was made. That being the case, it is not for the Ombudsman to intervene to substitute an alternative view.

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Final decision

11. We will not investigate Ms X’s complaint because our intervention would not lead to a different outcome.

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Investigator's decision on behalf of the Ombudsman