Summary: We will not investigate this complaint about the Council’s failure to complete an Education Health and Care Needs Assessment. Our intervention would not lead to a different outcome and is not therefore warranted.

The complaint

1. The complainant, Miss X, complains that the Council unreasonably refused her request for an Education Health and Care Needs Assessment (EHCNA) for her daughter. She further complains that, since the Council agreed to carry out an EHCNA, it has failed to complete it within the statutory timescale.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. 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))
4. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (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 Tribunal in this decision statement.

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How I considered this complaint

6. I considered information provided by the complainant and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Miss X says her daughter has special educational needs. Miss X complains that the Council made a flawed decision to refuse her request for an EHCNA, compelling her to use her right to appeal to the Tribunal. She says that, following her appeal, the Council has agreed to carry out an EHCNA. She complains that it has not done so within the statutory timescale.
9. The Ombudsman will not investigate Miss X’s complaint. We cannot take view on the merits of the decision to refuse an EHCNA. This is because Miss X used her right to appeal to the Tribunal. This is the appropriate recourse and the fact that it has been used places the matter outside the Ombudsman’s jurisdiction. There is no discretion available to us.
10. Turning to the subsequent EHCNA delay, the correspondence Miss X has provided shows that the Council has upheld her complaint. It has acknowledged its failure to meet the appropriate timescale and has set out the steps it is taking to increase educational psychology resource to address the issue.
11. The Ombudsman will not normally investigate complaints which have already been upheld. It is not a good use of our resources to do so. The question for us is whether our intervention is likely to lead to a different outcome. That is not the case here.
12. In recognition of its fault, The Council has offered to pay Miss X £100 for each month of delay beyond the statutory timescale until it makes an appealable decision. This remedy is in line with what the Ombudsman would be likely to seek to achieve in the circumstances of the case, and we would not seek a different outcome. Our intervention is not therefore warranted.

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Final decision

13. We will not investigate Miss X’s complaint because our intervention would not lead to a different outcome.

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Investigator's decision on behalf of the Ombudsman