The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s response to Ms X’s request for an assessment of her child’s special educational needs. Investigation would be unlikely to lead to the outcome Ms X is seeking. Ms X had a right of appeal against the Council’s decision it would have been reasonable to use, and any delay by the Council in issuing its decision would have been too short to cause significant injustice even if Ms X had exercised her right of appeal.
The complaint
Ms X said the Council took too long to issue a decision after she asked for an assessment of her child’s special educational needs (SEN) through the child’s school. She said the Council has not explained the reason why it declined to assess, and it has not responded to 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: any fault has not caused injustice to the person who complained, or any injustice is not significant enough to justify our involvement, or further investigation would not lead to a different outcome, or we cannot achieve the outcome someone wants.
(Local Government Act 1974, section 24A(6)) 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.
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Ms X said she approached her child’s school on 24 March 2021 to ask for an assessment of the child’s SEN. The Council sent us a copy of a letter to Ms X dated 1 June 2021 in which it told her she had a right to appeal the decision not to assess. The timescale for replying applies from the time a council receives a request to assess. Even if the school passed on the request immediately, any delay by the Council would have been no more than four weeks. Any injustice caused by any delay would have been in the form of delaying Ms X’s opportunity to appeal against the decision. The Council told us Ms X had not appealed.
The correct route to challenge a refusal to assess a child’s SEN is through an appeal to the SEND Tribunal, not through a council’s complaints process.
Final decision
We will not investigate Ms X’s complaint because doing so would be unlikely to lead to the outcome Ms X is seeking. This is because: Ms X had a right of appeal against the Council’s refusal of her request to assess it would have been reasonable to use; There is not enough evidence of injustice caused by delay to warrant investigation; and It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.
Investigator's decision on behalf of the Ombudsman