Decision : Closed after initial enquiries
Decision date : 30 Apr 2018
The Ombudsman's final decision:
Summary: The Ombudsman cannot investigate Miss M’s complaint about a lack of special educational needs assessment decision notice. The Council has now issued the notice and it is reasonable to expect Miss M to appeal the decision to the Tribunal.
- The complainant, whom I shall call Miss M, says the Council failed to notify her of its decision on her request for an Education Health and Care Plan (EHCP) assessment for her child’s educational needs. She says it breached the required notification timescales.
The Ombudsman’s role and powers
- 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)
- SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
- 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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe it is unlikely we could add to any previous investigation by the Council. (Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
- I considered the information Miss M provided with her complaint, the Education Health and Care Plan Code and the Council’s reply to her complaint which it provided. Miss M had an opportunity to comment on a draft version of this decision.
What I found
- Miss M’s has an eight year old child, B, whom she says is struggling academically at school and whose behaviour is worsening. She believes B needs extra support. She says she asked the Council in January 2018 to assess B’s educational needs to see if B needs an Education Care and Health Plan. Miss M says a Council officer telephoned her the next day and said the Council would not carry out the assessment.
- Miss M complained. The Council replied to her complaint in April after she had complained to us. It apologised for the delay in notifying her of its decision. It said it had sent its formal decision to her in early April.
- The EHCP Code says the Council must tell a parent of its decision within six weeks of the request to assess.
- Miss M has a right of appeal to SEND of the Council’s decision not to assess. We cannot investigate its decision not to assess as it is reasonable to expect her to appeal.
- The Council has accepted its notification was late and has apologised. We cannot determine the extent of any injustice caused to Miss M by this delay until the appeal outcome is known. At this stage in events, our investigation would be unlikely to achieve no more than an apology, which has already been given.
- The Ombudsman cannot investigate this complaint. This is because Miss M has a right of appeal to SEND and it is reasonable to expect her to use it.
Investigator's decision on behalf of the Ombudsman