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Suffolk County Council (19 007 601)

Category : Education > Special educational needs

Decision : Closed after initial enquiries

Decision date : 09 Oct 2019

The Ombudsman's final decision:

Summary: The Ombudsman will not investigate Mrs X’s complaint about the way an educational psychologist assessed her child and data retention issues. The Health and Care Professions Council and the Information Commissioner’s Office are better placed.

The complaint

  1. The complainant, whom I shall call Mrs X, complains about the way an Educational Psychologist (EP) assessed her child, B and the Council not keeping related data about that assessment.

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The Ombudsman’s role and powers

  1. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
  2. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), 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 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 there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

  1. I considered the information Mrs X provided with her complaint which included a council reply. Mrs X had the opportunity to comment on a draft version of this decision.

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What I found

Background

  1. Mrs X’s child, B, has additional learning needs.
  2. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
  3. A tribunal ordered the Council to assess B’s needs to decide if B needed an EHC plan. As part of this assessment the Council arranged for an EP assessment. Mrs X complains about the way the EP assessed B. She says the EP failed to consider B’s needs or to make reasonable adjustments for B’s needs. She says B was distressed during the assessment and afterwards. Mrs X says this caused distress to her and she incurred time and trouble in pursuing her complaint about this.
  4. The Council issued an EHC Plan which Mrs X appealed to the Tribunal.
  5. Mrs X complained to the Health and Care Professions Council (HCPC), to which the EP is a member.
  6. Mrs X says the Council has not kept data, such as recordings, showing the assessment process and should have done.

Analysis

  1. We cannot investigate whether the EP’s assessment conclusions adversely affected the EHC Plan content. This is because Mrs X appealed the content to the Tribunal.
  2. It would be difficult to investigate the EP’s actions or manner separately from the assessment conclusions. Our role is to investigate the actions of the Council as a corporate body, not to hold a single officer accountable. If Mrs X has concerns about the professionalism or integrity of an EP, it is reasonable to expect her to report her concerns to their professional body.
  3. The HCPC is the EP’s professional governing body. It is their role to consider if their ethics code, which covers the EP’s professionalism has been kept to. Mrs X has already complained to that body. It is not appropriate for us to consider the same issue.
  4. Parliament set up the Information Commissioner’s Office (ICO) to oversee the Data Protection Act. It can decide if the Council breached the Act in not keeping information or data in any format. Mrs X’s complaint about the Council not holding evidence, is better suited to the ICO.

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Final decision

  1. The Ombudsman will not investigate this complaint. This is because the ICO is the suitable body to consider the data protection complaint, the HCPC is more suited to consider the EP’s professionalism complaint. We cannot investigate the EHC Plan content.

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Investigator's decision on behalf of the Ombudsman

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