Summary: We will not investigate this complaint about the Council’s Education, Health and Care needs assessment for Ms X’s child. This is because the issues raised concern the way the Council reached its decision to name a particular setting in the Education, Health and Care Plan and it appears Ms X has exercised her right of appeal to challenge this decision.

The complaint

1. Ms X complains about the Council’s Education, Health and Care (EHC) needs assessment for her child. She says it failed to give her the full 15 days to respond to the draft EHC Plan and she did not have the chance to state her preferences for the setting named in the Plan. She also complains about the Council’s handling of her complaint and says the Council has not provided information she requested. Ms X says her child has been out of school for more than a year and that she has been off work for several months due to stress resulting from the Council’s actions.

Back to top

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 effect 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 an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
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 has a right of appeal, reference or review to a tribunal about the same matter. We may decide to investigate if we consider it would be unreasonable to expect the person to use this right but cannot investigate if they have already used it. (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.

Back to top

How I considered this complaint

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

Back to top

My assessment

8. I note Ms X’s child has been out of school for some time but the Council has provided both a mainstream school and alternative provision it considers suitable to meet her child’s needs. I appreciate Ms X disagrees with the suitability of the provision arranged but I have seen no basis for us to question the Council’s view.
9. The Council has now named a setting in the child’s EHC Plan and it is clear Ms X also disagrees with the setting named. While she has tried to separate her concerns about the setting from the issues she has raised about the process, the process issues are too closely related to the Council’s decision to name the setting and this decision carried a right of appeal which it appears Ms X has now used.
10. We cannot speculate whether, had the Council give Ms X longer to respond to the draft EHC Plan or explicitly requested her preferences, the Council may have named a different setting which Ms X would have been happy with. We also cannot look into the content or type of reports commissioned by the Council and whether these affected its decision, or achieve any worthwhile outcome by investigating the Council’s apparent failure to provide details of its conversation with the setting prior to naming it in her child’s EHC Plan.
11. It is ultimately a matter for the Tribunal to decide whether the Council should amend the EHC Plan and to rule on the dispute over whether the setting is suitable to meet Ms X’s child’s needs. We cannot investigate any complaint about the way the Council made its decision as this would infringe on the Tribunal’s jurisdiction.
12. Ms X has also complained the Council delayed in responding to her request for mediation, but I have seen no evidence to show this has been raised with the Council or that it has completed its complaints process. We cannot therefore investigate it further at this time.
13. Ms X is also unhappy with the way the Council dealt with her complaint. But it is not a good use of public resources to look at the Council’s complaints handling if we are not going to look at the substantive issue complained about. We will not therefore investigate this issue separately.

Back to top

Final decision

14. We cannot investigate this complaint. This is because the main issues and the injustice Ms X claims stem from the way the Council reached its decision to name a setting Ms X disagrees with in her child’s EHC Plan and it appears she has used her right of appeal to challenge this. We cannot speculate as to whether the Council’s decision would or should have been different, had the issues she complains about not occurred.

Back to top

Investigator's decision on behalf of the Ombudsman