The Ombudsman's final decision:
Summary: Mrs B complained the Council’s special educational needs and disability department failed to make reasonable adjustments for her during her daughter’s education, health and care assessment. Mrs B said this caused her distress and impacted on her ability to engage with the Council. There was no fault with the Council’s actions.
- Mrs B complained the Council’s special educational needs and disability (SEND) department failed to make reasonable adjustments for her during her daughter’s education, health and care (EHC) assessment. Mrs B said this caused her distress and impacted on her ability to engage with the Council.
What I have investigated
- I did not investigate the Council’s actions during the SEND tribunal. Mrs B had the opportunity to raise issues with the Council’s actions during the tribunal.
- I investigated the period from May 2020 to May 2021, when Mrs B complained to the Ombudsman. If Mrs B is unhappy with the Council’s actions from June 2021 onwards, she can make a new complaint to the Council.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. 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)
- We cannot investigate a complaint if someone has appealed to a tribunal. (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 ‘SEND Tribunal’.
- The Court of Appeal confirmed the Ombudsman cannot consider a complaint when the complainant has pursued an alternative remedy, even if it does not provide a complete remedy for the injustice claimed. (R v Commission for Local Administration, ex parte Field  EWHC 754 (Admin))
- 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)
How I considered this complaint
- I considered:
- Mrs B’s complaint and the information she provided;
- documents supplied by the Council; and
- relevant legislation and guidelines.
What I found
Legislation and guidance
- A child with special educational needs may have an EHC plan. This sets out the child’s needs and what arrangements councils should make to meet them. Part 3 of the Children and Families Act 2014, the Special Educational Needs and Disability Regulations 2014 and the SEND code of practice: 0 to 25 years give council’s information about its duties.
- If a council decides, following an EHC needs assessment, not to issue an EHC plan, it must tell the child’s parent or the young person within a maximum of 16 weeks from the request for a EHC needs assessment.
- The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs, including a decision not to issue an EHC plan. I will refer to it as the SEND Tribunal in this decision statement.
- The Equality Act 2010 protects people from discrimination arising from disability. The Equality Act 2010 says councils should make changes or adjustments to enable people with a disability to receive the same services as others if they are reasonable.
- In May 2020, Mrs B asked the Council to assess her daughter, C, for an EHC plan. Mrs B told the Council she had autism spectrum disorder (ASD) and her partner, Mr B, had attention deficit hyperactivity disorder (ADHD). The Council provided Mrs B with information about the procedure it would follow to decide whether to assess C.
- In August 2020 the Council told Mrs B C was not eligible for an EHC plan. It invited her to a meeting to discuss its decision and said it would give her written feedback at the meeting. Mrs B asked the Council to provide a copy of its EHC assessment before the meeting. The Council fulfilled this request.
- Mrs B emailed the Council and asked it to make an adjustment for ASD. She asked the Council to confirm who would attend the meeting and a copy of the agenda. The Council sent Mrs B a list of invitees and said the meeting did not have an agenda.
- After the meeting, Mrs B appealed to the SEND tribunal against the Council’s decision not to issue an EHC plan for her daughter. Mrs B’s legal representative asked the SEND tribunal to make adjustments during the proceedings. The final tribunal hearing was held in May 2021. The tribunal ordered the Council to issue a draft EHC plan, the deadline was 23 June 2021. In May 2021, Mrs B complained to the Council about its actions during the SEND tribunal.
- In May 2021, the Council gave Mrs B details of C’s new SEND officer. The officer explained the procedure of developing an EHC plan and the impact Covid-19 could have.
- The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body which carries out a public function. Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.
- The Council fulfilled Mrs B’s request for a copy of C’s EHC assessment before the meeting to discuss its decision not to issue an EHC plan for C and confirmed who would attend. This demonstrates the Council took account of its duties under the Equality Act 2010.
- Mrs B appealed against the Council’s decision. Mrs B was unhappy with the Council’s actions during the SEND tribunal. Mrs B had the opportunity to raise these issues during the tribunal. Therefore, I did not investigate the Council’s actions during the period of the SEND tribunal.
- I have completed my investigation and do not uphold Mrs B’s complaint.
Parts of the complaint that I did not investigate
- I did not investigate the Council’s actions during the SEND tribunal process. Mrs B had the opportunity to raise issues she had with the Council’s actions during the tribunal.
Investigator's decision on behalf of the Ombudsman