The Ombudsman's final decision
Summary: We will not investigate Mrs X’s complaint about delays in issuing an Education Health and Care Plan decision and in replying to her complaint. It is unlikely we will achieve a significantly different remedy.
The complaint
The complainant, whom I shall call Mrs X, says the Council failed to reply to her complaint.
The Ombudsman’s role and powers
The law says we cannot normally investigate a complaint when someone can appeal 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 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 about special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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)
How I considered this complaint
I considered information provided by Mrs X and the Council’s response to her complaint.
I considered the Ombudsman’s Assessment Code.
My assessment
Mrs X says she complained in June 2022 about a delay in the Council deciding whether to assess her child for an Education Health and Care Plan (EHC Plan).
The Council replied in November 2022. It said Mrs X asked for an assessment at the end of April 2022. It said at the end of June, it wrote to her with its decision. It accepts this is later than the six weeks the regulations stipulate. It apologised.
Analysis Mrs X has a right of appeal to SEND against the Council’s decision not to assess her child for an EHC Plan. The Council decided a mainstream school could meet the child’s needs. We will not investigate that decision because it is reasonable to expect Mrs X to have appealed.
It is unlikely we would seek a more significant remedy than the apology already given for a less than three week delay in providing its decision in June 2022.
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.
Final decision
We will not investigate Mrs X’s complaint because it is unlikely we would achieve a significantly different remedy than an apology for the delays in this case.
Investigator's decision on behalf of the Ombudsman