Summary: We will not investigate Mrs X’s complaint about the Council’s decision not to carry out an education, health and care needs assessment for her son. This is because it would have been reasonable for her to appeal against the decision. We will not investigate Mrs X’s complaint about the Council’s refusal to put in place alternative provision for her son as there is not enough evidence of fault.

The complaint

1. The complainant, Mrs X, complains the Council has failed to provide her son Y with sufficient support with his special educational needs (SEN). She applied for an education, health and care (EHC) needs assessment but the Council refused her application. She is also unhappy the Council has not put in place alternative provision under Section 19 of the Education Act 1996 or support for his transition to secondary school.

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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. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (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 Mrs X’s representative, Ms Z, and the Ombudsman’s Assessment Code.

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My assessment

7. We are not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly we cannot question whether the decision was right or wrong.
8. If Mrs X was unhappy with the Council’s decision not to carry out an EHC needs assessment it would have been reasonable for her to appeal to the SEND Tribunal. The process is free and relatively easy to follow and the Tribunal can decide whether the Council’s decision was correct. If it decides it was not, it may direct the Council to carry out an assessment.
9. While Mrs X believes the Council should have put in place alternative provision for Y under Section 19 of the Education Act 1996, the Council has explained the reasons it did not. Its decision on this point did not carry a right of appeal but I have not seen enough evidence of fault for us to question it.
10. Mrs X is also unhappy the Council did not put in place support for Y’s transition to high school outside of the formal EHC needs assessment process and without and EHC Plan in place. She says this was agreed as part of the mediation process but the information her representative provided shows the Council referred to this in its complaint response dated 2 July 2024, before the mediation hearing. Ms Z then complained to us on 8 July 2024.
11. This timescale did not give the Council sufficient opportunity for the child’s school to put in place any additional support and Mrs X has not complained to the Council about its failure to do so. In the event the support is still not in place Mrs X should raise a new complaint about it with the Council in the first instance. If, once the Council has issued its final response, Mrs X remains unhappy she may refer the complaint to us and we will consider whether to investigate it.

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Final decision

12. We will not investigate this complaint. This is because the substantive issue concerns the Council’s decision not to carry out an EHC needs assessment and if Mrs X disagreed with this decision it would have been reasonable for her to appeal. There is not enough evidence of fault in the Council’s refusal to put in place alternative provision to warrant further investigation.

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Investigator's decision on behalf of the Ombudsman