Decision : Closed after initial enquiries
Decision date : 20 Sep 2018
The Ombudsman's final decision:
Summary: The Ombudsman cannot investigate X’s complaint about a Council inadequate educational needs assessment. X appealed to a Tribunal and the law prevents us from investigating matters connected to a Tribunal appeal.
- The complainant, whom I shall call X, complains about the Council’s Education Health and Care Plan (EHCP) process of their child B, the content of the draft EHCP, delays in the process and the amount the Council allocated for a personal budget.
The Ombudsman’s role and powers
- SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
- We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
- 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)
- 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 the injustice is not significant enough to justify the cost of our involvement. (Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
- I considered the information X provided with their complaint and the Council’s replies which it provided. I considered X’s comments on a draft version of this decision.
What I found
- In March 2017, X asked the Council to assess their child, B’s, special educational needs. This triggered an EHCP assessment. The Council produced its final EHCP 22 weeks later in August 2017. The EHCP Code says this must happen within 20 weeks.
- X disagreed with the EHCP wording and appealed this to the Tribunal, SEND. It reached its decision in early March 2018. The Council produced its amended EHCP in line with the Tribunal’s decision 27 days later.
- X complained about the Council’s EHCP drafting process. They say the Council did not pay enough time and attention to the professionals’ advice. They say they were forced to commission their own expert reports. They say the Council pursued a hopeless appeal. They say the Tribunal’s decisions supports their views.
- X says if the Council had carried out the EHCP drafting process properly, and they had not had to appeal, they would not have had to pay for B’s additional support during the process. They say they paid for a level of support which the Tribunal since approved.
- X says the Council is not providing them with enough personal budget to cover the specified support. The personal budget is contained within the EHCP. X says this was not discussed at the Tribunal hearing and has been inserted afterwards.
- We cannot investigate whether the draft EHCP or final EHCP provided in August 2017, was adequate or flawed, because X appealed the EHCP wording and adequacy to SEND.
- We cannot investigate the provision B received during the appeal process which was less than the Tribunal’s ruling. The Courts have made it clear we are not able to do this.
- We cannot investigate the personal budget level as it is stated in the EHCP. We will not investigate any amendment made to the EHCP following the appeal as X has a right of appeal.
- We cannot investigate any costs X incurred during the appeal process. The law provides them with a remedy process for this by way of a wasted costs application. It is reasonable to expect them to use that right.
- We could investigate any delay before the appeal. Here there is two weeks. This, on its own, is not significant enough to justify our investigation.
Investigator's decision on behalf of the Ombudsman