Summary: We will not investigate Mr and Mrs X’s complaint about the Council’s refusal to incorporate the recommendations of a private medical assessment into their child’s Education Health and Care Plan. This is because Mr and Mrs X used their right of appeal against the Council’s decision. We are also unlikely to add to the Council’s response and Mr and Mrs X have not suffered significant injustice.

The complaint

1. Mr and Mrs X complain the Council cancelled and failed to reschedule a co-production meeting to discuss their child’s (Y) draft Education, Health and Care Plan (EHCP). They say the Council then issued a finalised EHCP and refused to incorporate the recommendations of a dyslexia assessment Mr and Mrs X had privately funded. After appealing, the Council was ordered to incorporate the recommendations of the assessment. Mr and Mrs X complain the Council failed to finalise the EHCP within the five-week statutory time frame. Mr and Mrs X want the Council to pay back the cost of the assessment and charges they incurred fulfilling the recommendations before their appeal. They want compensation for the distress and for almost two years of Y not receiving the specialist support. They also want the Council to review its processes to ensure timely compliance with statutory duties and tribunal orders.

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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 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)
4. 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.
5. 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:

• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

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

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How I considered this complaint

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

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My assessment

8. Under paragraph 9.77 of the SEND code, Council’s must send a draft EHCP to the parents and officers should make themselves available if a co-production meeting is requested.
9. Mr and Mrs X requested a meeting with the Council which it cancelled and failed to reschedule before issuing the final EHCP.
10. The Council upheld this part of the complaint and issued an apology to Mr and Mrs X. It also recommended within a month staff should receive extra training to make sure requests for co-production meetings are responded to and where agreed arranged as soon as possible. Therefore, we are unlikely to add anything further to the Council’s response.
11. Mr and Mrs X have complained the Council refused to assess Y for Dyslexia and did not incorporate the findings of the assessment they paid for in the EHCP. However, Mr and Mrs X appealed to the SEND Tribunal, and it ordered the Council to include the recommendations from the dyslexia assessment Mr and Mrs X had paid for privately. We cannot investigate matters where someone has used their right to appeal to a tribunal. Mr and Mrs X say the Council should reimburse them for the dyslexia assessment and the costs they have incurred for Y’s private tuition. But these matters are not separable from the appeal against the contents of the EHCP.
12. Mr and Mrs X complained that following the tribunal order, the Council failed to meet the statutory five-week deadline to issue the final EHCP and delayed getting the specialist support Y needed. There is evidence of fault, the Council missed the deadline by two weeks. The Council backdated the support by a week, and I consider this would have been a reasonable time frame to start the support had it achieved the five-week deadline. Therefore, I do not consider Mr and Mrs X suffered any significant injustice because of the delay.

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Final decision

13. We will not investigate Mr and Mrs X’s complaint because they appealed to the SEND Tribunal and these matters fall outside our jurisdiction. For the parts in our jurisdiction, it is unlikely an investigation by the Ombudsman would add to the Council’s response or achieve anything more for Mr and Mrs X. Mr and Mrs X have not suffered significant injustice because of the delays putting the support in place.

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Investigator's decision on behalf of the Ombudsman