Summary: We will not investigate this complaint about mediation arranged by the Council after a decision not to assess Mrs X’s child’s potential special educational needs. This is because there is not sufficient evidence of injustice caused by fault in the Council’s actions to warrant our involvement, as we could not say Mrs X would have avoided the need to appeal against its decision.

The complaint

1. Mrs X said the Council refused mediation at the latest time possible, which meant she had to appeal to the Special Educational Needs and Disability (SEND) Tribunal without a mediation certificate. She said the Council failed to respond to her complaint.

Back to top

The Ombudsman’s role and powers

2. 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 any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6))
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. 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
5. 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.
6. 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.

Back to top

How I considered this complaint

7. I considered information provided by the complainant.
8. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

9. The complaint correspondence shows arrangements for a mediation meeting changed at short notice and it did not happen as it should have done. However, the correspondence provided by Mrs X shows she appealed to the SEND Tribunal without a mediation certificate, and it registered her appeal on 8 December 2022. This was within 33 days of the Council’s decision not to assess on 7 November 2022.
10. While changing mediation arrangements at short notice was fault, as was the time taken by the Council to deal with Mrs X’s complaint, I could not say the inconvenience caused was sufficient to warrant our involvement.
11. While the Council later conceded Mrs X’s appeal and issued an Education Health and Care (EHC) Plan for her child. I cannot say this was delayed as the result of delay by the Council outside the timescale, or that it was the result of the fault in organising the meeting.
12. First, The Tribunal document shows Mrs X appealed before the mediation timescale available to the Council expired. This timescale is 30 days to arrange mediation, and three days to issue the certificate. Thus, regardless of whether the Council went on to fail to issue the mediation certificate, Mrs X had access to the Tribunal within 33 days of the Council’s decision not to assess. She was thus not delayed outside the timescale by any action or inaction of the Council.
13. Second, I cannot say the Council would have offered Mrs X what wanted without her having to appeal even if it had acted without fault in arranging the meeting and issuing a mediation certificate. This is because I cannot say that a mediation meeting held without fault and /or a certificate issued by 10 December 2022 would have resulted in the Council conceding either at the meeting, or sooner after a consequent appeal by Mrs X to the SEND Tribunal. That would be speculation. And we cannot say whether the Council should have agreed Mrs X’s request. That was a matter for her appeal, later conceded by the Council without need for a hearing. We cannot investigate matters where there has been appeal to the SEND Tribunal, even if the matter is settled before a hearing.

Back to top

Final decision

14. We will not investigate Mrs X’s complaint because the injustice caused by fault is not sufficient to warrant our involvement. And whether the Council should have agreed to assess was a matter where Mrs X exercised her right to appeal to the SEND Tribunal.
15. It would not be a good use of public resources to investigate the way the Council dealt with the complaint as we are not investigating the substantive matter.

Back to top

Investigator's decision on behalf of the Ombudsman