Summary: We cannot investigate Mrs X’s complaint about her daughter’s Education, Health and Care plan. Mrs X should have appealed to the Special Educational Needs and Disability Tribunal.

The complaint

1. Mrs X complains Sheffield City Council (the Council) did not follow the correct process when she requested advice from Sheffield Children’s NHS Foundation Trust’s (the Trust) Sensory Service as part of the Education, Health and Care (EHC) needs assessment for her daughter, Y. She says the Council did not obtain that advice before completing the EHC plan. Mrs X also says the Trust told her it would only provide advice for an EHC plan in certain circumstances.
2. Mrs X says she suffered time and trouble, distress and worry during the EHC needs assessment. She says the EHC plan does not reflect Y’s sensory needs.
3. Mrs X would like the Council to fund an independent sensory assessment for Y. She would like an apology and for the organisations to review their policies and procedures.

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The Ombudsmen’s role and powers

4. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended and Health Service Commissioners Act 1993, section 4(1)(a))
5. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’)).
6. Children who have special educational needs may have an EHC Plan. This sets out the child’s special educational needs and the provision needed to meet them. Local authorities have a duty to secure the special educational provision set out in an EHC Plan, unless the parent or young person has made suitable alternative arrangements. (Children and Families Act 2014 section 42)
7. The Ombudsmen provide a free service, but must use public money carefully. They may decide not to start or continue with an investigation if they believe they cannot achieve the outcome someone wants. (Health Service Commissioners Act 1993, section 3(2) and Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

8. I have considered Mrs X’s information and spoken to her on the phone.
9. Mrs X had an opportunity to comment on my draft decision.

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What I found

Key facts

10. In March 2022, the Council asked the Trust’s Sensory Service to provide advice as part of the EHC needs assessment for Y. Around that time, Y was on a waiting list for an assessment.
11. In April, after chasing an assessment, the Sensory Service told Mrs X that there was a three month wait for assessments. Also, its service was limited and would only provide advice for EHC plans in certain circumstances.
12. In May, Mrs X complained to the Council. In response, the Council said it chased the Sensory Service but cannot influence their waiting lists. It said as Y had not met with the Sensory Service, it would finalise the EHC plan without the Sensory Service’s advice. Instead, the Council will include sensory information from a private sensory report in 2021. The Council agreed to update the EHC plan when the Trust had assessed Y’s sensory needs.
13. In early July, the Council finalised Y’s EHC plan. It said Mrs X could appeal to the SEND tribunal if she was unhappy with the content of the EHC plan.
14. Mrs X approached the Ombudsmen in late July.

Analysis

15. I will not investigate this complaint because it is outside the Ombudsmen’s jurisdiction. Mrs X should have appealed to the SEND Tribunal about Y’s special education needs after the Council finalised the EHC plan in July 2022.
16. Mrs X considers the Council should have sought an independent sensory assessment if the Trust was unwilling to carry one out. The Ombudsmen cannot make that recommendation. Mrs X should have appealed to the SEND Tribunal to challenge the provision (or lack of) in the EHC plan to meet Y’s sensory needs. The SEND Tribunal could have directed the Council to obtain a sensory assessment.
17. In the absence of a sensory assessment, I consider an investigation by the Ombudsmen would not be able to reach a view on any potential injustice Mrs X and Y may have suffered.

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Final decision

18. I will not investigate her complaint. Mrs X should have appealed to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman