The Ombudsman's final decision
Summary: Miss B complains the Council declined to assess her child, Y, for an Education Health and Care Plan. She says this led to a delay in Y receiving support. We will discontinue this investigation as Miss B had an alternative remedy by which to challenge the Council’s decision.
The complaint
The complainant, who I refer to as Miss B, complains the Council declined to assess Y for an Education Health and Care Plan (“EHCP”). She says the Council later agreed to assess Y and issued an EHCP. She says the Council’s initial decision was wrong as Y’s conditions alone indicated they needed an assessment. She says the delay in assessing Y meant they did not receive necessary support. Miss B also disagrees with the current EHCP and has appealed this to the SEN tribunal.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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) 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)
How I considered this complaint
I considered the information provided and sent a copy of my draft decision to Miss B and the Council for their comments before making a final decision.
What I found
Law and Guidance A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says: Councils must secure an EHC needs assessment for a child if, after having regard to any views expressed and evidence submitted, the council is of the opinion: the child has or may have special educational needs, and it may be necessary for special educational provision to be made for the child The Code says that, in considering whether a EHC needs assessment is necessary, the council should consider whether there is evidence that despite the early years provider or school having taken relevant and purposeful action to identify, assess and meet the needs of the child, they have not made expected progress.
Background
Y is diagnosed with Autism Spectrum Disorder, Global Developmental Delay and severe speech and language difficulties. They were due to start with an early years provider in September 2021.
In mid-2021 Miss B applied for an EHC assessment. The Council declined to assess Y. At the end of 2021 Miss B applied again. On this occasion the Council agreed to assess Y and subsequently produced an EHCP.
Miss B complained to the Council. She said the law sets out that it is only necessary to show a child may need additional support, for the Council to complete an assessment. Therefore, the Council should have assessed Y when she first applied.
At the first stage the Council did not uphold Miss Y’s complaint. It said the first decision was based on different information, compared to the second.
Miss Y escalated her complaint to the second stage. The Council again said it did not believe the original decision not to assess was inappropriate. It said there were differences between the information available at the two assessments. It said often evidence of intervention over time is needed to have a fuller understanding of long-term need. However, it indicated the Council should have more closely monitored Y’s progress in the early years setting and should have agreed to an EHC needs assessment at an earlier point. It apologised, offered Miss B £300 in recognition of this shortcoming and said it had made changes to its procedures.
Findings
I will discontinue this investigation.
Miss B had a right of appeal to the tribunal against the Council’s decision not to assess Y in mid-2021. We normally expect a person to have used this alternative remedy if they disagree with the decision not to assess, and therefore would not investigate.
I do not consider there are grounds to exercise discretion to investigate in this case. An appeal to the tribunal is the normal recourse in these situations. Also, it is very unlikely it would be possible to find fault. The Council made a decision based on information available at that time. The Code supports that councils often need to see evidence of time spent with an early years provider or school, trying to identify and meet any needs, before it completes an EHC needs assessment. I would not be able to criticise the merits of the Council’s decision and there is no indication it did not follow the correct procedures in making the decision.
The Council has identified shortcomings in the time between the two assessments, through its own complaint procedure and suggested it could have made a decision to assess earlier. However, this is not based on a statutory duty, but what the Council considers would have been best practice in the circumstances. The statutory duty is to decide whether to assess when the Council receives an application. There is a right of appeal against that decision. Therefore, it is very unlikely I could make any findings that were not based on the Council’s own analysis of when it might have decided assess Y, outside of the normal application procedures, or suggest a significantly different remedy.
It would not be proportionate to investigate this intervening period when I could not reach a clear finding of fault or recommend a substantially different remedy to that already identified by the Council.
Final decision
I will discontinue this investigation as Miss B had an alternative remedy by which to challenge the Council’s decision.
Investigator's decision on behalf of the Ombudsman