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London Borough of Barking & Dagenham (22 003 648)

Category : Education > Special educational needs

Decision : Closed after initial enquiries

Decision date : 16 Jun 2022

The Ombudsman's final decision:

Summary: We will not investigate this complaint about the conduct of the Council when Mr and Mrs X applied for an Education Health and care Plan for their child. We could achieve any worthwhile outcome by investigating at this stage as it is not yet clear what injustice if any has been caused by the Council’s delay in issuing an appealable decision not to assess Mr and Mrs X’s child’s special educational needs. Other matters are outside our jurisdiction.

The complaint

  1. Mr and Mrs X said the Council failed since 2016 to respond to their requests to assess their child special educational needs (SEN). They said there was further delay after the latest request in 2021, and that the Council mismanaged the Special Educational Needs and Disability Tribunal appeal process, causing further delay. They said the Council has still failed to assess their child more than two months after the Tribunal ordered this.

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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)
  2. 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)
  3. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
  4. 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 further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6))
  5. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

  1. I considered information provided by the complainant and the Council.
  2. I considered the Ombudsman’s Assessment Code.

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My assessment

  1. Matters dating from before 2021 are late. Mr and Mrs X could have complained about them sooner. However, any refusal to assess a child’s needs is also a matter in respect of which there is a right to appeal to the SEND Tribunal.
  2. The complaint correspondence provided by Mr and Mrs X show the Council accepted it made errors in the management of the appeal process. It offered them £1000 for their costs. Notwithstanding that, we cannot comment on matters which were, from the date when the Council issued its decision, not separable from the appeal process.
  3. However, the Council also accepted it took six weeks too long to issue the decision that gave rise to the appeal. That was fault. However, as the process of assessing the child’s needs and deciding whether they require an Education Health and Care (EHC) Plan is still ongoing, it is not possible now to say if the delayed decision will have caused the child to receive any provision late. Mr and Mrs X would be welcome to return to us once there has been a final decision, appealed if necessary to the SEND Tribunal, that establishes their child’s SEN and what special educational provision is needed.
  4. At present, the Council has not exceeded the timescale for issuing a further decision whether to issue an EHC Plan, or to refuse to issue a Plan. Should it do so, Mr and Mrs X should first complain to the Council about that further matter before approaching us if they are dissatisfied with the Council’s final response.

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Final decision

  1. We will not investigate Mr and Mrs X’s complaint because we could not at present achieve any worthwhile outcome by doing so.
  • We cannot at present say what injustice if any was caused by the delay of six weeks in deciding not to assess Mr and Mrs X’s child’s SEN. They are welcome to return to us regarding delayed decision-making by the Council when their child’s SEN if any have been established, if necessary after a further appeal to the SEND Tribunal. They should do so within 12 months of the SEND Tribunal’s final decision or agreed outcome with the Council in the case of no Tribunal, unless prevented by a good reason;
  • Matters dating from before 2021 are late and there is no good reason to consider them now;
  • Matters after the Council issued its decision not to assess in September 2021 and before the SEND Tribunal decision of 1 April 2022 form part of the Tribunal process and we cannot consider them.

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Investigator's decision on behalf of the Ombudsman

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