Decision : Closed after initial enquiries
Decision date : 15 Jun 2022
The Ombudsman's final decision:
Summary: We will not investigate Mr X’s complaint about delay in the assessment of child A’s education and health care needs and ‘child A’ more recently being out of school. It is not currently possible to assess the injustice. Mr X can return to this office when there is a decision on his appeal to the Special Educational Needs Tribunal or following the Council’s assessment of ‘child A’ being out of school.
- Complaint 1: Mr X complains the Council delayed in completing an education health care (EHC) assessment of his son, ‘child A’. He says the Council agreed the assessment last September and should have completed by the end of December 2021, on the 20-week requirement. Mr X says on 27 April 2022 the Council refused to issue an education health care plan (EHCP). Mr X has appealed to the Special Educational Needs and Disability (SEND) Tribunal. Mr X says the Council’s assessment delay has delayed his appeal and any future support for child A. Mr X says the delay caused stress and anxiety to child A and the family.
- Complaint 2: Mr X complains the Council has failed to provide out of school education for child A since he stopped attending at the end of March. He says due to the delay in the EHC assessment child A’s mental and physical health deteriorated and he is too ill to attend school. Mr X says the school is providing some education, but it is not sufficient.
The Ombudsman’s role and powers
- The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:
- we cannot achieve the outcome someone wants.
(Local Government Act 1974, section 24A(6))
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5))
How I considered this complaint
- I have considered Mr X’s information and comments. The information includes the Council’s letter 31 May 2022 on the current out of school situation.
- I will not investigate this complaint for the following reasons:
- We cannot assess the injustice on the first complaint until the outcome of the appeal to the SEND Tribunal. Mr X can return to the Ombudsman once the outcome of the appeal is known.
- The complaint correspondence of February and March show Mr X was not complaining about child A not being well enough to attend school. Mr X tells me the school is providing some education, but it is not good enough. The complaint is premature to this office because the Council has not had a reasonable time to complete the complaint procedure (see paragraphs 4 and 5). The Council’s stage 1 reply, dated 31 May, explains its approach. Mr X is awaiting a report from the paediatrician who has oversight of his son. It is then possible for a referral to go from the school, which is acting on behalf of the Council, to the medical needs service. Mr X should follow that process. If the problem is not resolved, he may return to this office.
- The Ombudsman will not investigate Mr X’s complaint about delay in the assessment of child A’s education and health care needs and ‘child A’ more recently being out of school. It is not currently possible to assess the injustice. Mr X can return to this office when there is a decision on his appeal to the Special Educational Needs Tribunal or following the Council’s assessment of ‘child A’ being out of school.
Investigator's decision on behalf of the Ombudsman