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London Borough of Barking & Dagenham (21 000 793)

Category : Education > Special educational needs

Decision : Closed after initial enquiries

Decision date : 30 Jun 2021

The Ombudsman's final decision:

Summary: We will not investigate this complaint about the Council’s delay in issuing an Education, Health and Care plan. This is because the complaint is late with no good reasons to consider it now.

The complaint

  1. Mr and Mrs Y complain on behalf of their son, X and themselves about the Council’s delay in issuing an Education, Health and Care (EHC) plan for him in 2016.
  2. Mr and Mrs Y say they had to employ a solicitor to get the support their son needed, causing distress and inconvenience to the family. They also say their son missed a year of suitable education because of the delay.

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The Ombudsman’s role and powers

  1. 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)

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How I considered this complaint

  1. I considered the information and complaint responses provided by Mr and Mrs Y. They had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

  1. Mr and Mrs Y’s son, X, has autism. He received an EHC plan in 2016 after the contents of the EHC plan were decided by a tribunal. Mr and Mrs Y say the Council delayed throughout the process. They say the EHC plan was issued after the tribunal deadline to do this had passed.
  2. Mr and Mrs Y complained to the Council in September 2020. The Council responded initially in October, offering to meet with the family. After further emails from Mr and Mrs Y, the Council issued a final response to the complaint in December 2020. It said that the family had had chance to appeal to the contents of the EHC plan if they had felt further provision was needed after the tribunal in 2016. It said it had no further comments to make about the complaint as it had been four years since the alleged delay had happened. Mr and Mrs Y approached the Ombudsman in April 2021.

Analysis

  1. The law says people should normally complain to us within 12 months of becoming aware of an issue. Complaints brought to the Ombudsman more than 12 months after someone becomes aware of something a council has done are considered late. This rule is about the date the person complaining became aware of their reason to complain, rather than when they raised the complaint to the Council. We cannot investigate late complaints unless we decide there are good reasons.
  2. Mr and Mrs Y were aware of their reason to complain about the Council’s actions when their son’s EHC plan was issued in 2016 and there were delays in the provision being made following this, in approximately 2017. As it has been significantly more than 12 months since Mr and Mrs Y became aware of their reason to complain, the complaint is now late. We have discretion to disapply the rule outlined in paragraph three where we decide there are good reasons. Mr and Mrs Y have not provided any good reasons why they did not bring their complaint to us within 12 months of knowing about the matter. It is reasonable to have expected them to complain sooner. Consequently, we will not investigate this complaint.

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Final decision

  1. We will not investigate this complaint. This is because the complaint is late with no good reasons to investigate it now.

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Investigator's decision on behalf of the Ombudsman

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