The Ombudsman's final decision
Summary: We will not investigate this complaint about failures by the Council in issuing Education Health and Care Plans for Mrs X’s children and failing to offer alternative educational provision for them. Some of the matters complained of are not separable from those where Mrs X used her right to appeal to the Special Educational Need and Disability Tribunal, and others are late. Investigation of the remaining matters would not be likely to lead to a different or worthwhile outcome as we would be unlikely to recommend a significantly greater remedy than that already offered by the Council.
The complaint
Mrs X complained of failings by the Council in assessing her children’s special educational needs (SEN) and issuing Education Health and Care (EHC) Plans. She also complained the Council failed to make alternative educational provision for her children when they were out of education. She also complained the Council took too long to deal with her complaint.
The Ombudsman’s role and powers
The Ombudsman investigates 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 may decide not to continue with an investigation if we decide: further investigation would not lead to a different outcome, or we cannot achieve the outcome someone wants.
(Local Government Act 1974, section 24A(6)) We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, 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) 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.
The courts have held that where someone has appealed to the SEND Tribunal, we have no authority to consider what educational provision should be made for the child concerned. (Local Government Act 1974, section 26(6)(a), R v the Commissioner for Local Administration ex parte PH, 1999); R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407 Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code and our Guidance on Remedies.
My assessment
My consideration of this complaint is significantly affected by limits on our jurisdiction. These are complex.
Several of the matters complained of are not separable from the content of the EHC Plans and how they were arrived at by the Council. This means these matters are not separable from those where there was a right of appeal to the SEND Tribunal on two occasions that Mrs X used, and we cannot investigate them. Specifically, they are: Failing to start an assessment of SEN for an EHC Plan despite overwhelming evidence; Failing to gather information from relevant agencies and organisations; Failing to gather information as part of Mrs X’s reasonable requests; Causing Mrs X to have to supply information more than once; Refusing at first to use a private clinical psychologist’s advice; Creating EHC Plans that were basically copied and pasted from an educational psychologist’s report, with imprecise wording; and Naming an unsuitable mainstream setting.
The role of the SEND Tribunal also affects our ability to consider part of the complaint about alternative education when Mrs X’s children were out of school. The court ruling referred to above is relevant here. Mrs X used her right of appeal against the EHC Plans the Council issued in March 2021. From then until the Council conceded the case in December 2021 after her appeal to the SEND Tribunal, we cannot consider what education the Council provided.
The earlier part of the complaint about alternative educational provision, involving one child, and dating from 2019 and 2020, is late. Mrs X was aware that her child was not receiving education, and she was able to pursue matters relating to both her children’s SEN. She could therefore have come to us sooner. As the matter of one child being out of education was ongoing into 2021 and beyond, where both children were not attending school, I have considered what date would be reasonable to take as a starting point. The Council took from eight months from February to October 2021 to deal with Mrs X’s complaint (I will return to this later). But she took another eight months from October 2021 to June 2022 to approach us. It is reasonable to disregard the time taken by the Council, as Mrs X could not approach us during that time. But it is reasonable to take into account her own delay. Therefore, I have considered matters from October 2020, five months before Mrs X complained to the Council, to March 2021, when the Council issued the EHC Plans against which Mrs X appealed. I have not considered the education provided after the Council conceded the appeal in December 2021 because this matter has not formed part of the complaint to the Council. I would expect Mrs X to have complained of this to the Council before approaching us promptly. If she has complained to the Council about new matters since December 2021 and received a final response from it, she would be welcome to bring them to us.
The period from October 2020 to February 2021 concerned one of Mrs X’s children. It seems clear the child was not in education during that time. I add to that the time taken by the Council to issue the EHC Plans, which were late, and the Council’s delay in dealing with Mrs X’s complaint, which took about five months longer than we generally say is reasonable. I note the Council has accepted some fault in sourcing education and offered Mrs X £2100, comprising £1000 each for her children and £100 for her trouble and inconvenience in pursuing matters.
The question, therefore, is one of what remedy we would usually suggest if finding fault and injustice in the matters that are within our jurisdiction. If it would not be significantly different to any remedy offered by the Council, for whatever reason, we would not investigate.
We normally suggest an average of £400 per school month where there is a total loss of education. In the case of Mrs X’s child, the period from October 2020 to March 2021 is slightly more than two half-terms, so about four school months. That would be about £1600 if we had investigated and found fault.
Loss of specific SEN provision caused by delay is something for which we normally recommend £100-200 per month. Six weeks’ delay in issuing the EHC Plans in March 2021 would have created six weeks’ delay for both children after that. So, we would have been likely to recommend about £250 for each child, a total of £500, if we had investigated and found fault.
We also make recommendations of sums of up to £250 where a person has had significant time and trouble in pursuing a complaint. In this case, we might have done so.
The total we would therefore have been likely to have recommended, had we investigated and found fault, would have been in the range £2,000-£2,500. Therefore, investigation by us would be unlikely to lead to a significantly different and worthwhile outcome from that already achieved by the Council’s own investigation.
Final decision
We will not investigate Mrs X’s complaint because: Some matters are not separable from matters where Mrs X had a right to appeal to the SEND Tribunal that she used; Some matters are late, and there is no good reason to exercise discretion to investigate them; and Investigation of the remaining matter is unlikely to lead to a different or worthwhile outcome.
Investigator's decision on behalf of the Ombudsman