The Ombudsman's final decision
Summary: The Ombudsman has discontinued the investigation of Mrs X’s complaint that the Council delayed issuing her daughter’s Education, Health and Care Plan (EHC Plan) and failed to consult an occupational therapist during the assessment for the plan. This is because it is not possible to assess the extent of the injustice until the provision she should have been receiving is known. A Tribunal is currently considering this.
The complaint
The complainant, whom I shall refer to as Mrs X, complains the Council failed consult with an Occupational Therapist (OT) when assessing her daughter, C, for an Education, Health and Care Plan (EHC Plan). Mrs X also complains the Council has delayed in issuing C’s EHC Plan.
The Ombudsman’s role and powers
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) 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) SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’)) We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended) If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
I considered Mrs X’s complaint and the information she provided.
I considered the information I received from the Council.
Mrs X and the Council were given an opportunity to comment on a draft of this decision. I took into consideration the comments I received from the Council before making this final decision. I did not receive any comments from Mrs X.
What I found
Mrs X has a daughter, C, who has a diagnosis of autism.
The school she attended requested an EHC needs assessment and on 8 June 2021 the Council decided to proceed with an EHC Plan.
Mrs X complained to the Council on 30 June 2021 because the Council failed to obtain advice from an Occupational Therapist (OT) as part of the assessment.
The Council considered her complaint under its two-stage complaints policy.
The Council was of the view that all appropriate professionals had been requested to contribute to C’s EHC needs assessment. It said it had approached the Occupational Therapy Team but they were unable to accept the referral and instead signposted Mrs X to other sources of support.
The Council acknowledged it had lacked clarity in communicating with Mrs X and it also recognised it had failed to complete parts of the process within timescales. The Council apologised to Mrs X and referred her to the Ombudsman.
The Council has since issued C’s final EHC Plan and Mrs X has appealed to the SEND Tribunal.
Analysis When investigating complaints about delays to EHC assessments we would look at the SEN provision that should have been provided by the Council. If we find fault, we look at what injustice that fault caused the child and the family.
We have published guidance to explain how we calculate remedies for people who have suffered injustice because of fault by a council. Our primary aim is to put people back in the position they would have been in if fault by the council had not occurred. Where this is not possible, we may recommend the council makes a financial payment.
The Ombudsman cannot currently assess the impact of any fault on the child and the family until it is known what SEN support C should have received. We will not know this until the Tribunal has finished. It is not right for us to investigate this complaint until then.
Final decision
I have discontinued my investigation on the basis that the Ombudsman cannot assess the impact of any delay or recommend a remedy until the case has been decided by the Tribunal. Once a decision has been made, Mrs X may bring her complaint to the Ombudsman again.
Investigator's decision on behalf of the Ombudsman