Summary: We have upheld this complaint because the Council delayed carrying out an Education Health and Care needs assessment. The Council has agreed to resolve the complaint by offering to make a payment to the complainant to remedy the injustice this caused.

The complaint

1. Mrs X complains about how the Council has dealt with a Education Health and Care (EHC) needs assessment for her child. Mrs X says the Council incorrectly refused to carry out an assessment, then delayed issuing an EHC plan, then incorrectly ignored advice saying that a school setting was not appropriate and named a mainstream school in the EHC plan. Mrs X says her child has been out of education since the Council issued its EHC plan and the Council has failed to arrange suitable alternative provision.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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 SEND 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. I cannot investigate Mrs X’s complaint about the Council’s initial decision not to carry out an EHC needs assessment or the Council’s decision to name a mainstream school in her child’s final EHC plan. This is because these matters have been subject to appeals to the SEND Tribunal which places them outside of our jurisdiction.
9. I also cannot investigate Mrs X’s complaint that the Council has failed to provide any alternative education provision during this period. This is because both Mrs X and the Council are clearly in disagreement about how Mrs X’s child’s educational needs can be met. Therefore, the lack of provision made for Mrs X’s child while the appeal is being considered is not separable to her appeal against the Council’s decision to name the school in the EHC plan.
10. We can however consider the Council’s actions before Mrs X’s right of appeal became engaged. If we were to consider this complaint it is likely we would find fault. This is because there was a delay in the Council issuing its EHC plan by nearly four months. This frustrated Mrs X’s appeal rights and caused her an injustice in the form of distress.
11. We therefore asked the Council to write to Mrs X to apologise for this delay and to offer to make a payment to her of £400 to reflect the distress caused by the significant delay in issuing the EHC plan.
12. To its credit, the Council agreed to resolve the complaint and has agreed with our recommendation. Therefore, within one month of the date of this final decision, it will write to Mrs X to apologise and offer to make a payment to her of £400 to remedy the distress its delays caused.

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Final decision

13. We have upheld this complaint. The Council has agreed to resolve the complaint early by providing an appropriate remedy.

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Investigator's decision on behalf of the Ombudsman