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London Borough of Newham (18 018 918)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 21 Jan 2020

The Ombudsman's final decision:

Summary: Ms X complains of delay by the Council in deciding not to issue an Education Health and Care (EHC) Plan for her daughter, Z. The Council took too long to decide not to issue, and also failed to deal with Ms X’s complaint about this. However, there was no injustice as the resulting Special Educational Needs and Disability (SEND) Tribunal found Z did not need an EHC Plan.

The complaint

  1. The complainant, whom I shall call Ms X, complains the Council:
  • Took too long to issue its decision not to write an EHC Plan for her daughter, Z, delaying her right of appeal to the SEND Tribunal;
  • Advised her in 2016 or 2017 to pay privately for assessments to speed up her case; and
  • Refused to deal with her complaint of delay because she has appealed to the SEND Tribunal.

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The Ombudsman’s role and powers

  1. 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)
  2. 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 fault has not caused injustice to the person who complained. (Local Government Act 1974, section 24A(6), as amended)
  3. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
  4. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
  5. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

  1. I considered the Council’s duties as laid out in the Special Education Needs Code 2015 (the Code). I read Ms X’s complaint and spoke to her on the telephone. I made written enquiries of the Council and considered its response. I asked Ms X for a copy of the SEND Tribunal’s decision. I shared a draft of this decision with both parties and invited their comments. I received none.

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What I found

What should happen?

  1. When a parent asks a council with educational responsibilities to issue an EHC Plan for their child, the council has 20 weeks to either: issue an EHC Plan; or refuse to issue an EHC Plan.
  2. In either case, a dissatisfied parent may appeal to the SEND tribunal.
  3. Councils should not advise parents to speed matters up by paying privately for assessments.
  4. Complaints of delay in deciding not to issue an EHC Plan are separate from disagreements about whether the council should issue a Plan.

What happened, and was there fault?

Time taken to decide

  1. The Council accepts it took too long to decide not to issue an EHC Plan for Z. It took nine months, from May 2018 to February 2019. This was fault.

Advising Ms X to pay privately for an assessment

  1. Ms X and the Council both said it was Z’s school that advised this. The Council was therefore not at fault. The Ombudsman has no authority to investigate the actions of a school.

Complaint handling

  1. Although Ms X complained about the refusal to issue an EHC Plan at the same time as she complained about the delay in deciding, these are two separate matters. While the SEND Tribunal could rule on Z’s needs, it had no authority to comment on the delay. The Council should have considered Ms X’s complaint about delay. Not doing so was fault.

Injustice caused by fault

  1. The SEND Tribunal found Z had no SEN that required an EHC Plan. It dismissed Ms X’s appeal.
  2. The Council took too long to decide. It also failed to deal with Ms X’s complaint about this. But the SEND Tribunal ruled Z did not need an EHC Plan. So, the fault found did not cause Z to miss any provision in an EHC Plan. There was thus no injustice.

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Final decision

  1. I have upheld the complaint, but not recommended any remedy as there was no injustice caused.

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Investigator's decision on behalf of the Ombudsman

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