Summary: We will not investigate this complaint about delays in the Council issuing an Education, Health and Care Plan. The Council has already provided a suitable remedy. We are unlikely to find fault with the Council for not providing alternative provision and the Council has not had the opportunity to address other parts of the complaint.

The complaint

1. Ms X complains the Council delayed issuing her child Y’s Education, Health and Care (EHC) Plan and is unhappy the Council did not provide alternative provisions when Y was out of school.
2. Ms X complains the Council unfairly issued a school attendance order while she had an open complaint, which she found stressful.
3. Ms X also complains the Council failed to commission an occupational therapy assessment, and says this meant she had to privately pay for one.
4. Ms X wants the Council to arrange alternative provision, admit the EHC plan delays, and refund the costs of the private occupational therapy assessment.
5. Ms X also complains about the Council’s complaint handling.

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The Ombudsman’s role and powers

6. 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 not enough evidence of fault to justify investigating, or further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
7. We may decide not to start or continue with an investigation if we are satisfied with the actions an organisation has taken or proposes to take. (Local Government Act 1974, section 24A(7), as amended)
8. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)

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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. Ms X elected to home educate Y and removed him from the school register. Ms X then asked the Council to arrange alternative educational provision for Y under section 19 of the Education Act 1996.
12. The information I have seen shows the Council considered Mrs X’s request but decided the evidence it had was not enough to approve it. The decision is a matter of professional judgement, and I have seen no evidence of fault in the way the Council reached it. We cannot question it.
13. If there are concerns a child is not being suitably educated, the Council must act, even if there is an ongoing EHC process. It can serve a notice in writing on the parents requiring them to demonstrate the child is receiving a suitable education. If the Council is not satisfied and it is the Council’s view that a child should attend school, the council should serve a school attendance order.
14. Our role is not to ask whether an organisation could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome. Based on the information available there is not enough evidence of fault by the Council to warrant us investigating.
15. The Council has accepted it was at fault for delaying the issue of the final EHC Plan. The Council has offered Ms X a remedy which is in line with our guidelines. This removes the need for us to investigate the delay.
16. We have assessed the Council’s actions in the 12 months leading up to Miss X’s complaint to us. I have seen no information which shows Ms X complained to the Council about the occupational therapy assessment in that time and requested a refund, nor have I seen any reason Ms X could not do so in the future. So, the restriction in paragraph eight applies. If Miss X makes a complaint on this matter and is unhappy with the Council’s response, she can raise a new complaint with the Ombudsman.
17. It is not a good use of public resources to investigate complaints about complaint procedures, if we decide not to investigate the substantive issue.

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Final decision

18. We will not investigate Ms X’s complaint because the Council has already provided a suitable remedy for the EHC Plan delay. We are unlikely to find fault with the Council for not providing alternative educational provision or issuing a school attendance order, and we cannot investigate the other part of the complaint until the Council has considered it.

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Investigator's decision on behalf of the Ombudsman