The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council refusing to assess Mr X’s child’s special educational needs. There is a right of appeal to a tribunal it would be reasonable to use.
The complaint
Mr X said the Council refused to assess his child’s special educational needs (SEN) when he started school despite clear evidence that the child has additional needs, being non-verbal, having autism and having been assessed elsewhere as needing learning support.
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 regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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 there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6))
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
Mr X has a right of appeal to the SEND Tribunal against the Council’s refusal to assess his child’s SEN it would be reasonable to use.
Mr X says his child is receiving only three hours education per week from the school the Council allocated. Under normal circumstances, that would create a duty for the Council to offer alternative educational provision. However, the Council’s duty to do so only applies where a child is of compulsory school age, which starts at the beginning of the school term after the child’s fifth birthday. That will not be until September 2023. Therefore, the Council is not at fault in not offering alternative educational provision.
Final decision
We will not investigate Mr X’s complaint because he has a right to appeal to the SEND Tribunal it would be reasonable to use. Investigation would also be unlikely to lead to a finding of fault as the Council has no current duty to offer alternative educational provision.
Investigator's decision on behalf of the Ombudsman