Summary: We will not investigate Mrs X’s complaint about the Council’s failure to respond during the Education, Health and Care needs assessment process and the decision not to assess Y for an Education, Health and Care plan. The Council has apologised for the poor communication and acted to improve its service. It is unlikely an investigation would achieve anything more. She had a right of appeal to a tribunal about the decisions not to assess Y for an Education, Health and Care plan in 2023 and 2024.

The complaint

1. Mrs X complains on behalf of her adult daughter, Y. Mrs X complains the Council refused to conduct an Education, Health and Care (EHC) needs assessment for Y in May 2023, and failed to respond to her request for a meeting in summer 2023 to discuss the decision.
2. Mrs X also complains that the Council decided again not to assess Y for an EHC plan in August 2024 and delayed sending her the decision letter.
3. Mrs X says the matter impacted her and Y’s mental health and frustrated their right to appeal to the SEND Tribunal. Mrs X wants the Council to reimburse her costs and improve its services.

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The Ombudsman’s role and powers

4. 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:

• further investigation would not lead to a different outcome, or
• there is another body better placed to consider this complaint, or
• any injustice is not significant enough to justify our involvement.

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

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. 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)

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How I considered this complaint

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

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My assessment

9. Mrs X requested an EHC needs assessment for Y in May 2023 which the Council refused. The Council advised Mrs X of her right of appeal to the SEND tribunal and offered her a Council-led next steps meeting. Mrs X submitted further information and requested the next steps meeting in June 2023, but the Council did not respond until June 2024. In its complaint response, the Council accepted it had not responded and apologised for this. It explained how it had acted to improve its service moving forward. It said would take Y’s case back to panel to make a further decision about whether to complete an EHC needs assessment.
10. We will not investigate this part of the complaint. The Council has accepted fault, apologised for the poor communication and acted to improve its service. It would be unlikely an investigation would achieve anything more or lead to a different outcome. Mrs X also had a right of appeal to the SEND tribunal following the May 2023 decision, which it would have been reasonable for her to use.
11. In August 2024, the Council considered Y’s case again but decided not to assess Y for an EHC plan. It did not inform Mrs X of this decision at the time and only sent her the decision letter in November 2024, after we had contacted them. The decision letter included Mrs X’s right to appeal to the SEND tribunal.
12. We will not investigate this. There was a delay sending Mrs X the outcome letter which I accept may have caused Mrs X some frustration, but the injustice caused is not significant enough to warrant our involvement. If Mrs X disagrees with the Council’s decision, she can appeal to the SEND tribunal, and it is reasonable to expect her to use this option. Only the SEND Tribunal can order a council to complete an EHC needs assessment or issue an EHC Plan.

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Investigator's decision on behalf of the Ombudsman