Summary: We will not investigate this complaint about the alleged failure of the Council to assess and meet Mrs X’s child’s needs over a period of 15 years. There is a good reason to exercise discretion to consider late matters. But there are several reasons why investigation of these matters is unlikely to lead to any worthwhile outcome.

The complaint

1. Mrs X said the Council failed to assess and meet her child’s special educational needs (SEN) over 15 years in education. She said they had no idea her child had autistic spectrum disorder (ASD) until the child was 16, and there should have been an Education Health and Care (EHC) Plan.

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The Ombudsman’s role and powers

2. We investigate 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 continue an investigation if we decide there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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. (Local Government Act 1974, sections 26B and 34D, as amended)
5. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
6. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (Local Government Act 1974, section 26(6)(a), as amended)
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.
8. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.

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How I considered this complaint

9. I considered information provided by the complainant and the Council.
10. I considered the Ombudsman’s Assessment Code.

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My assessment

11. Mrs X made her complaint with the assistance of a representative. I accept that she would find it more difficult than the average person to complain to us. For that reason, I have exercised the discretion available and have not excluded late matters, even though they go back far more than a year.
12. However, the prospect of us finding the Council should have been aware of and correctly diagnosed and supported Mrs X’s child’s SEN over a period of 15 years is very limited. There are several linked reasons for this.
13. First, the child did not have an EHC Plan. That means we could not find that the Council failed to deliver provision specified in an EHC Plan. And an absolute legal bar prevents us investigating the actions of schools attended by the child. So, we could not say a school failed to meet the child’s SEN in the classroom.
14. Second, we could not say there should have been an assessment of the child’s possible SEN. In the case of a dispute, there is a right of appeal to the SEND Tribunal it would have been reasonable to use. However, Mrs X has not claimed there was any formal request for assessment, either by her or by a school. We have no legal power to consider any failure by a school to ask for one or to advise Mrs X to do so. And even if there was a request, we could only consider delay by the Council to issue a decision or failure to issue an decision.
15. Third, we could not reach any view about what the child’s SEN were at any point during the child’s school career. Only a SEND Tribunal could have decided if the child needed an EHC Plan, what the child’s needs were, what the content of any Plan should be, and what school should be named. We could not consider how the Council reached any decision, or the evidence it took into account, as that would be closely connected with the content of any Plan issued. All we could consider would be any delay in issuing a decision that could be appealed against.
16. Fourth, we could not reach any clear view about the possible injustice to the child caused by any delay or failure to issue a decision. This is because there was no appeal to the SEND Tribunal. Reaching any view would involve us deciding what the child’s SEN were. We cannot do that.
17. Lastly, investigation would not be likely to lead to us making any recommendations to the Council about training or practice changes. Even if we were to find a historic request for assessment had been delayed or not responded to, the staff members concerned would be likely to have moved on. And there is no evidence that any historic failure by the Council to respond properly to an assessment request is reflected in current practice.
18. For all these reasons, investigation by of Mrs X’s complaint would be unlikely to lead to a worthwhile outcome.

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Final decision

19. We will not investigate Mrs X’s complaint because doing so would be unlikely to lead to a worthwhile outcome.

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Investigator's decision on behalf of the Ombudsman