Summary: We will not investigate this complaint about the Council’s handling of Mrs Q’s son’s Education, Health and Care plan. This is because she has either appealed to SENDIST or could have done so. In addition, we are unlikely to find fault with the Council on a part of the complaint that could not be appealed to SENDIST. And it would not be a good use of public resources to investigate the Council’s handling of Mrs Q’s complaint in isolation.

The complaint

1. The complainant, whom I have called Mrs Q, complained about Central Bedfordshire Council’s handling of her son, M’s, Education, Health and Care (EHC) plan. In particular, she complained about

• the Council’s initial refusal to assess M;
• the Council’s failure to refer M to CAMHS, contrary to Regulations;
• the content of M’s final EHC plan; and
• the Council’s handling of Mrs Q’s complaint.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
4. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
5. SENDIST is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SENDIST’))
6. We may decide not to start or continue with an investigation if we believe it is unlikely we would find fault. (Local Government Act 1974, section 24A(6), as amended)
7. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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How I considered this complaint

8. I considered the information Mrs Q provided. I considered the information the Council provided. I considered Mrs Q’s response to a draft of this decision.

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What I found

Background

9. Regulations and statutory guidance describe the advice and information a council must seek when it is assessing a child for an EHC plan.

What happened

10. In May 2019 Mrs Q asked the Council to assess M for an EHC plan. The Council refused and Mrs Q appealed to SENDIST.
11. In September 2019 the Council agreed to assess M after Mrs Q provided further information. The Council sought information and advice from health, social care and education professionals, and from professionals listed by Mrs Q. It completed the assessment and issued M’s final EHC plan in December 2019.
12. Mrs Q complained to the Council about its handling of M’s EHC plan assessment. It held a conciliation meeting with her in January 2020 and sent her its final complaint response in March 2020. Among other things it said

• its communication with Mrs Q about timescales for the assessment process could have been better and apologised for this;
• it explained which professionals it had contacted during M’s assessment;
• the EHC plan assessment process was not the correct way to get a referral to CAMHS;
• despite this, it did contact CAMHS which said M did not meet their criteria for assessment.

13. Mrs Q complained to us. She repeated the complaints she made to the Council and also complained about its handling of her complaint. She does not believe the Council contacted relevant professionals when it assessed M. She said it did not have any contact with CAMHS, and Regulations required it to make a referral there. Mrs Q also said there was no social care assessment, and M’s EHC plan was vague, non-specific and not quantifiable. She said it was unlawful, open to interpretation and unenforceable. Mrs Q explained she had not appealed because the Council was keen to finalise the EHC plan and had assured her she could ask for a review at any time.
14. In response to the draft of this decision, Mrs Q reiterated many of the points described in the paragraph above. In addition, Mrs Q

• confirmed she was unhappy with all of M’s EHC plan, particularly the part that set out the special educational provision he should receive;
• said the Council did not initially contact CAMHS, but also provided evidence of the contact it did have;
• said a review of M’s EHC plan started in October 2020 and could not have started earlier because schools went into lockdown in March 2020;
• said at the heart of her complaint was the unlawful way the Council did M’s assessment and the distress it had caused her family over 18 months;
• said she did not appeal to SENDIST because the Council insisted M’s EHC plan did not need to be specific in terms of the provision he required, and she could request a review at any time. Nor did she think the Council would mislead her.

Assessment

15. We cannot and will not investigate this complaint.
16. Mrs Q appealed to SENDIST over the Council’s initial refusal to assess M for an EHC plan. Because of this, we cannot investigate this part of the complaint.
17. Mrs Q said the Council did not initially contact CAMHS, and that Regulations required it to make a referral. The information Mrs Q provided shows the Council did contact CAMHS, but I agree it did not make a referral there. However, while Regulations require councils to gather advice from relevant professionals when assessing a child, there is no requirement for councils to make referrals to CAMHS. So we are unlikely to find fault with the Council on this part of the complaint.
18. Mrs Q says the heart of her complaint is the unlawful way the Council assessed M and the distress this caused her family. However, the outcome of the assessment was M’s final EHC plan, which Mrs Q believes is inadequate and unenforceable. The Council issued M's final EHC plan in December 2019. Mrs Q then had the right of appeal to SENDIST if she was not happy with its content. Mrs Q explained why she did not appeal and said the Council told her she could ask for a review at any time. However, it is not our role to say what M’s EHC plan should include. So it would have been reasonable for Mrs Q to appeal to SENDIST, particularly as she had done so previously. An appeal would also have addressed her concerns about the adequacy of the assessment process.
19. Mrs Q said the Council told her she could ask for a review at any time. So it was open to her to ask for a review or reassessment before schools went into lockdown in March 2020.
20. Mrs Q also complained about the Council’s handling of her complaint. We will not investigate the substantive issues she complains of. So it would not be a good use of public resources to investigate this part of Mrs Q’s complaint in isolation.

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Final decision

21. We cannot and should not investigate this complaint for the reasons given in the Assessment.

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Investigator's decision on behalf of the Ombudsman