Summary: Mrs X complained about the Council’s failure to complete a section 17 care assessment of her son, D’s needs and its failure to complete a statutory annual review of his education plan. During the course of our investigation we were told that the court was looking at issues around whether the Council failed to complete a care assessment. The Council accepts it was wrong not to complete a statutory annual review of the education plan. It has said it will ensure staff are now made fully aware of the requirement to do so. It also said it would review Mrs X’s case. The Ombudsman has discontinued our investigation into this complaint.

The complaint

1. Mrs X complained that the Council;

• Failed to complete a section 17 assessment of D’s needs, as ordered by a tribunal Judge.
• Failed to complete a statutory annual review of the education plan.

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The Ombudsman’s role and powers

2. We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)
3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we are satisfied with the actions a council has taken or proposes to take. (Local Government Act 1974, section 24A(7), 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

5. I spoke with the complainant and reviewed her complaint file.
6. I made enquiries with the Council and researched the relevant law and guidance.
7. I gave both parties the opportunity to comment on my draft decision. Both parties will also have the opportunity to comment on this draft decision to discontinue.

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What I found

8. Mrs X brought her complaint to the Ombudsman on 6 September 2019. It was allocated to an investigator and the Council responded on 20 December 2019 to our enquiries.
9. Mrs X issued a Judicial Review application with the High Court on 4 February 2020. One of the issues Mrs X asked the Court to consider was the Council’s failure to carry out a section 17 assessment.
10. The case was addressed by a High Court Deputy Judge on 7 February 2020. He gave directions to deal with the handling of the case.
11. The Council says that an agreement was then reached for the case to be withdrawn. However, the Council refused to pay Mrs X’s costs. Therefore, the case has been adjourned so that the court can determine liability and costs.
12. The Ombudsman was not made aware that proceedings had been commenced. On 5 March 2020 we issued a draft decision.
13. The Council has responded, drawing our attention to the court action.
14. The Council accepts that it should have completed a statutory annual review. It has said it will apologise for this failure. It has now produced evidence that it has completed a recent annual review.

Analysis

15. As issues that are raised in this complaint have also been raised at court, as per my paragraph 2, it would not be right for the Ombudsman to continue with this investigation.
16. Even if the case has been withdrawn, it appears to me that the court will still have to address the issues raised by the case to make a determination with regard to costs. Therefore, it would not be appropriate for the Ombudsman to continue.
17. In relation to the other issue raised by the complainant, that the Council failed to complete a statutory annual review, the Council has said it will apologise for this and therefore any fault has been remedied. A review has been undertaken, even if it was not in time.
18. I am also encouraged by the Council’s statement that it will review this case so that any learning that can be gleaned from what happened can help ensure similar complaints do not occur in the future.

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Final decision to discontinue

19. Subject to further comments by Mrs X and the Council, I intend to discontinue this investigation.

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Investigator's decision on behalf of the Ombudsman