Summary: We are unable to investigate the majority of this complaint, about delays by the Council during a mediation and appeal process, because these matters fall outside our jurisdiction. The Council was at fault for a modest delay in completing an assessment after the appeal, but it has already apologised for this, which is an adequate remedy. We have therefore completed our investigation.

The complaint

1. I will refer to the complainant as Mr P.
2. Mr P applied to the Council to carry out a special educational need (SEN) assessment for his daughter, B, which it refused. He complains about delays by Council during the mediation and appeal processes, and a further delay in completing the assessment after it conceded the appeal.

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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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
6. The courts have also said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law or tribunal, the Ombudsman has no jurisdiction to investigate. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
7. 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.

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How I considered this complaint

8. I reviewed Mr P’s complaint correspondence with the Council and a chronology of key events he provided.
9. I also shared a draft copy of this decision with each party for their comments.

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What I found

10. Mr P’s daughter B has been diagnosed with a development disorder. In January 2022, he requested the Council carry out a SEN assessment for B. In February, the Council replied, declining to assess her on the basis she was already received adequate support.
11. Mr P then applied to the Council’s mediation service. The Council missed the deadline to arrange the mediation meeting, and Mr P received a certificate to confirm this, to allow him to approach the SEND Tribunal. However, he says he decided to continue with mediation at that point, with the meeting eventually being held in April.
12. After the meeting Mr P lodged an appeal against the Council’s decision with the SEND Tribunal.
13. Mr P commissioned a private occupational therapy (OT) report for B and sent it both to the Tribunal and Council for consideration. He says he did not originally receive confirmation from the Council it had received the report, and then when it did, told him it could not consider it because of the ongoing Tribunal proceedings.
14. The Council then reversed this decision and, upon review, told Mr B it would not contest the appeal. Mr B says the Council delayed 19 days before informing the Tribunal of its decision and formally conceding the appeal.
15. After conceding the appeal, Mr B says then the Council missed the deadline for completing the assessment by 15 days.

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Legislative background

16. A child or young person has SEN if they have a learning difficulty or disability which calls for special educational provision to be made for them. Most children have these needs met within local early years, mainstream school or college settings. Support at this level is called SEN support.
17. Some children or young people may require an assessment by the local authority to decide whether it is necessary to make provision in accordance with an education, health and care (EHC) plan.
18. The purpose of an EHC plan is to make special educational provision to meet the child or young person’s special educational needs.
19. If the parent or legal guardian of a child or young person asks for an SEN assessment, councils must decide whether one is necessary and tell the parent of their decision within six weeks of receiving the request. If a council decides not to conduct an SEN assessment, it must tell the parent, legal guardian or young person about their right of appeal to the SEND Tribunal.

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Analysis

20. The law says we should generally not investigate a complaint about a matter which carries a right of appeal to a courts or tribunal, unless we consider it is not reasonable to expect a person to use their appeal right. The law also says that, when a person has used their appeal right, we cannot investigate the same matter under any circumstances. This remains the case regardless of the outcome of the appeal, and even if it did not or could not address some of the injustice claimed by the complainant.
21. The courts have also clarified that this limitation on our jurisdiction applies from the moment the appeal right is triggered, which is when a council formally issues an appealable decision.
22. In this case, Mr P’s right of appeal was triggered on 17 February, when the Council issued its decision not to assess B. This means everything which fell after this date is outside of our jurisdiction and we cannot investigate it. This includes the Council’s conduct during the mediation process, and during the appeal to the Tribunal itself. I will also add that any issue with the Council’s conduct during an appeal process would be a matter for the Tribunal to address anyway.
23. I have therefore discontinued my investigation of these elements of Mr P’s complaint.
24. Mr P also complains the Council delayed producing the assessment of B after conceding the appeal. He says the Council had four weeks to do this and so the assessment was 15 days late, while the Council said it had five weeks and so it was 9 days late.
25. Regulation 45 of the SEND Regulations 2014 says, at paragraphs 3 and 6:

“Where the appeal concerned a request for a local authority to make an assessment under section 36 or a review or reassessment under section 44, the local authority shall carry out that assessment, review or reassessment within 4 weeks of the local authority’s notification to the First-tier Tribunal [that it will not contest the appeal] …

“Where the appeal concerns the refusal of the local authority to make an EHC Plan, then the local authority will arrange to make an EHC Plan within 5 weeks of the local authority’s notification to the First-tier Tribunal.”

26. As the appeal in this case was against a refusal to assess, therefore, I am satisfied Mr P was correct in saying the Council had four weeks to complete the assessment after conceding the appeal. It appears the Council may have confused this deadline with the one for an appeal against a refusal to make an EHC plan.
27. Even accepting this though, the Council acknowledged it missed the deadline to produce the assessment. There is no dispute it was at fault here.
28. However, and while I appreciate Mr P’s frustration, I cannot agree this was more than a modest delay. While it represents a minor injustice, as the Council has already apologised for it, I do not consider there is any further remedy to be made here.
29. I find fault causing injustice, but which the Council already remedied, in this element of Mr P’s complaint.

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Final decision

30. I have completed my investigation with a finding of fault causing injustice, but which the Council has already remedied.

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Investigator's decision on behalf of the Ombudsman