Lancashire County Council (18 007 038)

Category : Education > Other

Decision : Upheld

Decision date : 07 Feb 2019

The Ombudsman's final decision:

Summary: there is not enough evidence to conclude an Educational Psychologist failed to carry out an assessment following an incident in 2012, but the Council did not complete a review of Mr B’s Statement of Special Educational Need in March 2013.

The complaint

  1. Mr B complains an Educational Psychologist failed to carry out an assessment following an incident at school in 2012 which led to him receiving a broken arm.
  2. Mr B complains the Council failed to carry out a review of his Statement of Special Educational Needs when he was in Year 8 (2012/2013).
  3. Mr B complains about the Council’s investigation of his complaint, and in particular its failure to refer to an email in which the Educational Psychologist says he is ‘continuing to carry out assessments with [Mr B]’.
  4. Mr B complains the Council failed to advise him of his right to complain to the Local Government Ombudsman in its response to his complaint.

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The Ombudsman’s role and powers

  1. 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)
  2. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
  3. We investigate complaints about ‘maladministration’ and ‘service failure’ by councils. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I have considered:
    • information provided by Mr B;
    • information provided by the Council; and
    • The Education (Special Educational Needs) (England) (Consolidation) Regulations 2001.
  2. I invited Mr B and the Council to comment on my draft decision.

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What I found

  1. Mr B attended a community special school. He had a Statement of Special Educational Needs maintained by the Council.
  2. In 2012, Mr B suffered a broken arm at school when a teacher was dealing with an incident involving another pupil.
  3. Mr B complained to the Council in April 2016. A Senior Manager responded by letter dated 22 April 2016. Mr B obtained records from the Council through a Subject Access Request in 2018 and now wishes to challenge the Council’s response. The Ombudsman’s Assessment Team has decided to consider the complaint even though it relates to events more than 12 months ago as Mr B has only recently obtained information he believes calls the Council’s response into question.

Complaint 1: the Educational Psychologist’s failure to carry out an assessment following the incident in 2012

  1. Mr B complains that an Educational Psychologist failed to complete an assessment following the incident in 2012. He believes the failure to complete an assessment, together with the failure to carry out a review of his Statement the same year, means he may have missed out on support.
  2. When Mr B complained in 2016, the Council spoke to the Educational Psychologist. He explained what he remembered of the circumstances leading to his involvement in 2012. He said he did not remember being asked to see Mr B again.
  3. Mr B subsequently obtained a copy of his records from the Council. He found an email from the Educational Psychologist dated 5 October 2012 in which the Educational Psychologist says he is “continuing to carry out assessments with [Mr B].” Mr B says the Educational Psychologist did not carry out any further assessments, and points out that his email contradicts his recollection of events when he was interviewed by the Council in 2016.
  4. The Educational Psychologist has since retired so it has not been possible for the Council to ask him to explain his email. The Council said it believes he meant the remark in a general sense to mean he would continue to work with the school, rather than a reference to a specific assessment.
  5. There does not appear to be any other evidence to suggest the Educational Psychologist failed to carry out an assessment. I would expect to have seen a request for an assessment or follow up from the person who wanted it.
  6. Given the time that has passed, and the fact the Educational Psychologist has now retired, I cannot add to the Council’s response. Regrettably, I cannot now investigate Mr B’s concern that further involvement by the Educational Psychologist may have led to more support.

Complaint 2: failure to carry out an annual review in 2012/2013

  1. Mr B complains the Council failed to carry out an annual review of his Statement when he was in Year 8.
  2. The Council said there was no record of an annual review of Mr B’s Statement in 2012/2013 in it its files. The Council contacted the school, and the school has provided a statement review form dated 15 March 2013.
  3. The Regulations in force at the time required the head teacher to submit a report to the Council following the annual review. The Council then had to review the Statement in light of the report and record its decision on any recommendations the head teacher made.
  4. It appears the Council did not receive the head teacher’s report following the review meeting on 15 March 2013. I cannot investigate the actions of the head teacher. However, the Council did not complete the annual review of Mr B’s Statement, so I uphold his complaint. I cannot, however, assess the injustice this failure to complete the review caused Mr B.

Complaint 3: the Council’s investigation

  1. Mr B complains the Council did not refer to the Educational Psychologist’s email in its response to his complaint.
  2. The Council spoke to the Educational Psychologist who gave an account of his involvement. Given the uncertainty surrounding the interpretation of his email, it would have been helpful to have discussed it with the Educational Psychologist at the time. However, given the absence of other evidence to suggest he did not complete an assessment that was expected of him, any shortcomings in the Council’s investigation have not caused Mr B injustice to justify pursuing this part of his complaint.

Complaint 4: complaint to the Ombudsman

  1. Mr B complains the Council did not tell him he could complain to the Ombudsman when it responded to his complaint in 2016.
  2. The Council says Mr B said he was satisfied with the Council’s response so there was no need to direct him to the Ombudsman. I agree with the Council.

Agreed action

  1. We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred. When this is not possible, as in the case of Mr B, we may make other recommendations.
  2. The Council did not complete an annual review of Mr B’s Statement in 2012/2013. There is no record the Council received the head teacher’s report and considered its contents. I cannot assess the impact this had on Mr B’s education, so I cannot recommend a remedy based on the position he would have been in if the fault had not occurred. In these circumstances, I recommend the Council apologise to Mr B for its mistake.
  3. The Regulations have changed since the events Mr B complains about. Nevertheless, councils are still required to consider a report from the school following an annual review and decide what action to take. The Council says it has introduced a new case management system following the changes to the Regulations and this will ensure it fulfils its duties following annual reviews so the fault that affected Mr B will not affect others in the future.

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Final decision

  1. Mr B and the Council accept my findings and recommendations, so I have ended my investigation.

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Investigator's decision on behalf of the Ombudsman

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