Summary: The Ombudsman cannot investigate this complaint about the production and content of an Education Health and Care Plan (EHCP). This is because it cannot investigate complaints about schools or matters that are under appeal to a tribunal. The Ombudsman will not investigate other parts of the complaint as there is insufficient evidence of injustice or of fault by the Council.

The complaint

1. The complainant, who I refer to here as Miss X, says that the Council:
• Refused to conduct a Special Educational Needs assessment for her son,
• Delayed putting in place an Education Health and Care Plan (EHCP) once the assessment was done,
• Did not take her son’s needs properly into account, with the result that the EHCP is inadequate; and
• Has not facilitated access to short break services, for which her son has received funding.
2. Miss X further complains that her son’s previous school also refused a needs assessment for her son.

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The Ombudsman’s role and powers

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 the injustice is not significant enough to justify our involvement.

(Local Government Act 1974, section 24A(6), as amended)

4. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
5. The law also says we cannot normally investigate a complaint when someone has appealed to a tribunal, or is in the process of appealing. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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

7. I considered information provided by Miss X and the Council. I have also sent Miss X a draft decision and have considered her comments on this.

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What I found

Councils and special educational needs

8. The Council is responsible for making sure that arrangements specified in a child’s Education, Health and Care Plan (EHCP) are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
9. Decisions on needs assessments and on the content of EHCP are appealable to a SEND, which is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’)).
10. That law states that we are unable to investigate something where the complainant has appeal rights that it is reasonable for them to use. We cannot consider allegations of delays during the appeal period even where the alleged delay is claimed to cause loss or harm and no alternative remedy is available.

What happened

11. Miss X has told us that her son is autistic with dyspraxia and medical needs. In 2017 she asked her son’s previous school to carry out a needs assessment. The school proposed a delay to improve the chances of the request being accepted. A Council worker also recommended Ms X delay any parental request for assessment and she followed this advice. The school then accused Miss X of fabricating her son’s illness, meaning the plan for assessment was dropped. The law does not allow us to investigate complaints about schools, so I am unable to pursue this aspect of the complaint. There is insufficient evidence that the Council worker was at fault for recommending delay. It is not possible to know whether a parental request made in 2017 would have been approved.
12. In September 2018 Miss X applied directly to the Council for an assessment, which rejected the application the following month. Miss X appealed the decision to a Special Educational Needs and Disability Tribunal (SEND). In March 2019, immediately before the tribunal hearing, the Council agreed to conduct the assessment.
13. The Council then failed to meet a statutory 20-week deadline to produce the Education Health and Care Plan (EHCP). The EHCP was finalised after 26 weeks, in September 2019.
14. We are unable to investigate any allegations of delay during appeals processes. This means I cannot consider the Miss X’s allegation of delay between September 2018 and March 2019, when Miss X was appealing the Council’s decision to the SEND. We are able to consider whether any delay in producing the EHCP which exceeds the 20-week statutory time limit amounts to injustice.
15. As the Council took 26 weeks to produce the EHCP, the total delay I can consider is six weeks. This is fault by the Council. I have considered whether the council’s fault has caused injustice. The Council has admitted fault and apologised for the delay. I can see no evidence of significant injustice resulting from the six-week delay.
16. Miss X remains dissatisfied the content of the EHCP. Miss X has the right, which she has exercised, to appeal to SEND. We cannot investigate matters where a right to appeal has been exercised.
17. Miss X also complains that the Council has not facilitated access to short break services for her son. The Council states that it has funded two activities at Miss X’s request and has rejected a third request. It has agreed to carry out a full assessment of Miss X’s son. I have seen no evidence of fault by the Council in respect of the short breaks funding.

Final decision

18. The Ombudsman cannot investigate the substantive complaint. This is because we are unable to consider the school’s actions or matters where there is a right to an appeal. While there is evidence of minor fault by the Council in a separate part of the complaint, there is insufficient evidence of significant injustice to warrant investigation. There is no evidence of fault in a third part of the complaint.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman