Summary: Mrs X complains about the Council’s assessment of her son’s education, health and care needs, and the way it dealt with her complaint. She says the Council failed to obtain relevant advice from professionals so the education, health and care plan was not fit for purpose. She says she was forced to get a private assessment and was forced to appeal the plan at tribunal. Mrs X says this caused stress and distress, and cost her time and trouble. The Ombudsman does not find the Council at fault. The Ombudsman cannot investigate the parts of Mrs X’s complaint about the education, health and care plan because Mrs X had a right to appeal to a tribunal and we therefore have no discretion to investigate.

The complaint

1. The complainant, who I refer to here as Mrs X, complains about the Council’s assessment of her son’s education, health and care needs, and the way it dealt with her complaint. She complains that:
1. the Council failed to obtain relevant advice from professionals in order to properly assess her son’s education, health and care needs;
2. her son’s education, health and care plan was not fit for purpose because the Council failed to include a sensory assessment and speech and language report in the plan;
3. the Council failed to make necessary reports on its statutory failures under the Local Government and Housing Act 1989 (section 5); and,
4. the Council failed to deal with her complaint within stated timeframes.
2. Mrs X says she was forced to get a private sensory assessment and speech and language advice, and was forced to appeal the education, health and care plan at tribunal to get this information added to the plan.
3. Mrs X says her son has been unable to access education since March 2019 as a direct result of the Council’s failures to identify his needs and provide appropriate support. Mrs X says this has led to a deterioration in her son’s mental health. She says this has caused stress and distress, and taken time and trouble.

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What I have investigated

4. The Council issued its final Education, Health and Care (EHC) plan in October 2018. Mrs X then appealed the contents of the plan at the tribunal. The final tribunal hearing was held in August 2019. As I have said below, the Ombudsman’s jurisdiction is limited when someone can appeal to tribunal. For this reason, I have investigated the Council’s actions leading up to October 2018.
5. As I have said below, the Ombudsman cannot investigate late complaints unless there is a good reason to do so. In this case, Mrs X complained to the Ombudsman in August 2019 about the Council’s actions in 2018. Between October 2018 and August 2019, the tribunal was ongoing.
6. I consider that it would not have been reasonable to expect Mrs X to have complained to the Ombudsman any earlier because of the ongoing tribunal. For this reason, I have decided there are good reasons to exercise the Ombudsman’s discretion and investigate the Council’s actions up to October 2018.
7. I have investigated parts c and d of this complaint. The final section of this statement gives my reasons for not investigating after October 2018, and my reasons for not investigating parts a and b of Mrs X’s complaint.

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The Ombudsman’s role and powers

8. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
9. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
10. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
11. We cannot investigate a complaint if someone can appeal or has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)
12. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))

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How I considered this complaint

13. I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments before I reached a final decision.
14. I considered the relevant legislation, statutory guidance and policies, set out below.
15. I considered the joint Ofsted and Care Quality Commission inspection report, dated February 2019. I also considered the Ombudsman’s focus report ‘Not going to plan? – Education, Health and Care plans two years on’, published in October 2019.

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What I found

What should have happened

Education, Health and Care (EHC) plans

16. Under the Children and Families Act 2014, when an Education, Health and Care assessment is completed by a local authority and it shows a need for special educational provision, the local authority must prepare and maintain an Education, Health and Care (EHC) plan.
17. The government issued the Special Educational Needs and Disability Regulations (‘the Regulations’) in 2014. The Regulations say a local authority must seek the following advice and information on the needs of the child or young person, and what provision may be needed to meet those needs and intended outcomes:
1. advice and information from the child’s parent or the young person;
2. educational advice and information;
3. medical advice and information from a healthcare professional;
4. psychological advice and information from an educational psychologist;
5. social care advice and information;
6. advice and information from any other person the local authority thinks is appropriate;
7. where the child or young person is in or beyond year nine, advice and information in relation to provision to assist the child or young person in preparation for adulthood and independent living; and,
8. advice and information from any person the child’s parent or young person reasonably requests that the local authority seek advice from.
18. A child’s parent, or the young person named in the plan, can appeal to the first-tier tribunal to challenge the content of an EHC plan.

Duties of a council’s monitoring officer

19. Section five of the Local Government and Housing Act 1989 sets out some of the duties of a council’s monitoring officer. It says monitoring officers have a duty to prepare a report to the council if it appears that any proposal, decision or omission by the council has contravened, or is likely to contravene, a law. The duty also applies to any council action that has caused, or is likely to cause, fault or injustice.
20. The Ombudsman expects monitoring officers to prepare regular reports where we find fault and injustice. The Ombudsman also expects monitoring officers to prepare one-off reports if the issue is significant.

Complaints procedure

21. The Council has a two-stage corporate complaints procedure. This says that at stage one, the Council will respond to a person’s complaint within 20 working days.
22. At stage two, the procedure says the Council’s response should normally be completed within 25 working days. It says this timeframe may be extended to 65 working days for particularly complex cases.

What happened

23. In July 2018, the Council agreed to complete an Education, Health and Care (EHC) needs assessment for Mrs X’s son, B.
24. Mrs X asked the Council for assessments of B’s sensory needs, selective mutism, and anxiety. The Council said it would ask its EHC needs assessment panel to consider Mrs X’s requests for these assessments.
25. At the end of July, Mrs X complained that the Council refused to obtain advice and information from relevant professionals.
26. In August, the Council told Mrs X that the EHC needs assessment panel had considered her request for assessments. It said the panel could not identify any services or practitioners from health or social care who were currently or recently involved with B. For this reason, the panel decided it would be unreasonable to seek advice from professionals who had no knowledge of B.
27. The Council said Mrs X could access referrals and medical services through B’s GP. It said if Mrs X was in the process of making referrals, the Council would incorporate advice into the EHC plan once it received the advice.
28. At the end of August, the Council sent its stage one response to Mrs X’s complaint. The Council said it must seek advice and information from all professionals who were supporting the child. It said it would seek advice from the professionals currently involved. It said it was not able to make referrals for health services, and could not initiate health assessments where these have not been identified as necessary by a health professional.
29. The Council said B was not currently known to health services. It repeated that the only route for referrals to these services would be through consultation with B’s GP.
30. Also at the end of August, Mrs X commissioned a private assessment of B. This diagnosed B with autism. Mrs X asked the Council to deal with her complaint at stage two of the complaints procedure.
31. In September, the Council agreed to undertake a sensory assessment of B.
32. In October, the Council issued a draft EHC plan.
33. At the end of October, the Council sent Mrs X its stage two response to her complaint. The Council said it was satisfied it had acted in accordance with the Code which says advice and information must be sought from health care professionals who had a role in relation to B’s health.
34. The Council said it agreed to commission a sensory assessment within four working days of receiving confirmation of B’s autism diagnosis. It did not uphold her complaint.
35. The Council issued B’s final EHC plan at the end of October. Mrs X appealed to the tribunal. The tribunal held its final hearing at the end of August 2019.

Analysis

Failure to make necessary reports

36. Mrs X complains that the Council failed to make necessary reports on its statutory failures under the Local Government and Housing Act 1989 (section 5) (part c of the complaint).
37. Mrs X says she copied the Council’s monitoring officer into all of her complaint emails about the Council not meeting its statutory duties. She says she never got a response. She says the monitoring officer should have made a report to the Council about this failure to meet its statutory duties.
38. The Council says Mrs X regularly copied the monitoring officer and chief executive into her emails. It says its complaint responses were on behalf of the Council as a whole. It says the monitoring officer considers that because Mrs X’s issues were being addressed through the complaints procedure, it was not appropriate to apply his statutory duties.
39. The Council did not uphold Mrs X’s complaint so it did not find a contravention of law. Therefore, I find there was no expectation that the monitoring officer should have made a report. In any event, there would be no injustice to Mrs X if there had been such an expectation and the officer failed to make this report. For these reasons, I do not find the Council at fault.

Complaint handling

40. Mrs X complains that the Council failed to deal with her complaint within stated timeframes (part d of the complaint).
41. The Council sent its stage one response to Mrs X one day late, which it acknowledges. I find the Council sent Mrs X its stage two response after 38 days. The Council’s complaints procedure says the stage two response should normally be sent within 25 working days.
42. While this is outside the timeframe set out in the Council’s policy, it is not a significant or lengthy delay. For this reason, I do not consider this is significant enough to constitute fault.

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Final decision

43. I have completed my investigation and I do not uphold parts c or d of Mrs X’s complaint. This is because there is no fault.
44. I am unable to consider parts a or b of Mrs X’s complaint. This is because they are outside the Ombudsman’s jurisdiction. This is explained further below.

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Parts of the complaint that I did not investigate

45. I have not investigated the Council’s actions after October 2018. This is because Mrs X had a right to appeal the Education, Health and Care (EHC) plan in October 2018. Mrs X exercised this right. For this reason, the Council’s actions after October 2018 are outside the Ombudsman’s jurisdiction.

Failure to obtain relevant advice from professionals

46. Mrs X complains that the Council failed to obtain relevant advice from professionals in order to properly assess her son’s education, health and care needs (part a of the complaint).
47. Mrs X says the Council should have obtained assessments of B’s sensory needs, selective mutism and anxiety, as she requested. She says this was a reasonable request which the Council should have granted.
48. Having carefully considered the evidence regarding Mrs X’s appeal and what the tribunal considered, I find that we do not have any discretion to consider this part (part a) of Mrs X’s complaint. This is because Mrs X appealed the EHC plan which takes this element of the complaint out of our jurisdiction.

Education, Health and Care plan was not fit for purpose

49. Mrs X complains that her son’s education, health and care plan was not fit for purpose because the Council failed to include a sensory assessment and speech and language report in the plan (part b of the complaint).
50. Mrs X was unhappy with the content of the EHC plan and appealed to the tribunal. This was the appropriate route to take to challenge the content of the plan. As above, we do not have any discretion to consider this part of the complaint (part b) because it falls outside out jurisdiction.

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Investigator's decision on behalf of the Ombudsman