The Ombudsman's final decision
Summary: Ms X complained about Service J, which acted on the Council’s behalf. Ms X said Service J carried out a flawed assessment of Child Y, providing unsound advice about his needs. Ms X complained the Council relied on this unsound advice when deciding what provision it should put in place for Child Y. Ms X said Service J’s policy sought to restrict Child Y from accessing assistive equipment and was discriminatory. Ms X also complained about Service J’s conduct during an appeal to the SEND Tribunal and the Council’s complaint handling. We have ended our investigation of Ms X’s complaint. Complaints about the adequacy of professional assessments and advice, and the application of the policy in question, are outside of the Ombudsman’s jurisdiction, as they are matters the SEND Tribunal could consider as part of an appeal. The conduct of individuals during an appeal is also a matter for the SEND Tribunal. We cannot investigate these parts of Ms X’s complaint. We could not achieve anything for Ms X by investigating the Council’s complaint handling, when we cannot consider the substantive issues.
The complaint
Ms X complained about the actions of Service J, which acts on behalf of the Council. Ms X said Service J acted outside of its remit and professional competence. She says it carried out a flawed assessment of her child’s needs, leading it to provide unsound advice around the provision of an assistive aid. This affected her child’s educational provision.
Ms X said Service J’s policy is flawed. She said the intent was to create a policy obstructing young people from obtaining assistive equipment recommended for use by medical professionals. She said the policy was not fit for use, was discriminatory, and Service J misled the SEND Tribunal about when it created the policy.
Ms X also complained about how the Council considered her complaint. She said the Council did not properly consider her complaint, as it refused to consider relevant, up-to-date information.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (Local Government Act 1974, section 26(6)(a), as amended) It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
How I considered this complaint
I considered information Ms X provided and discussed the complaint with her.
I considered information the Council provided about the complaint.
Both Ms X and the Council were able to comment on a draft version of this decision. I considered any comments I received before making a final decision.
Relevant legislation, guidance and policy Education, Health and Care Plans A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document 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 their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.
Appeal rights There is a right of appeal to the Tribunal against: the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified; and an amendment to these elements of an EHC Plan.
The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207) We cannot investigate the council’s conduct during an appeal. This includes anything a complainant could have raised with the tribunal at any stage of the appeal, or which the tribunal has considered on its own initiative, or which could have been a part of the tribunal’s deliberations in resolving the appeal (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207) Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).
Summary of events Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “analysis” section of this decision statement.
The Council is party to a Joint Arrangement to commission services across six local authority areas. The stated aim of the Joint Arrangement is to ensure the special educational needs of children and young people are met in a coordinated and consistent way across each of the local authorities.
As part of the Joint Arrangement, another local authority, referred to here as Council B, hosts a service, referred to in this statement as Service J. Service J provides specialist assessments, teaching and advice to young people with a sensory impairment across the six local authorities, including the Council. For children of statutory school age, Service J provides assessments, training and support for children and school staff. It also contributes to EHC Plans, and provides teacher support and specialist equipment for children. The local authorities can make referrals to Service J for support.
Ms X’s child, referred to in this statement as Child Y, has an EHC Plan. Child Y has a diagnosed sensory processing disorder.
In 2021, the SEND Tribunal decided an appeal about the content of Child Y’s EHC Plan. Section F of the EHC Plan was updated to state Child Y “required a functional assessment by a Trained teacher of the deaf, vision and multi-sensory impaired to consider specialist equipment that may be required in the educational environment.”
In accordance with the wording of Section F, Service J conducted a functional assessment of Child Y in September 2021 on the Council’s behalf. Service J compiled a report, setting out their findings. In sum, the report suggested the assistive aid would provide limited benefit for Child Y, but said Service J could provide training if the aid was trialled.
In November 2021, the Council’s decision panel decided the assistive aid was not necessary, based on the evidence it received.
In January 2022, Ms X complained to Council B about Service J. The complaint focussed on how Service J had assessed Child Y, the professional advice it provided, its complaint handling, and whether it had acted outside its remit in its actions. Ms X said Service J had undertaken an assessment that was inappropriate for Child Y’s diagnosis, resulting in flawed advice about whether he needed an assistive aid.
Council B responded to Ms X’s complaint in April 2022. Dissatisfied with the response, Ms X referred the matter to the Ombudsman. The Ombudsman found the wrong authority had responded to Ms X’s complaint. We found Service J had carried out the assessment on behalf of the Council, rather than Council B, and the Council was responsible for maintaining Child Y’s EHC Plan. We decided the Council had to respond formally to Ms X’s complaint before we could investigate.
The Ombudsman issued its final decision in September 2022. In April 2023, Ms X referred her complaint back to the Council to investigate. In late June 2023, Ms X told the Council she wished to add further evidence, due to the time that had elapsed since she made the original complaint. The Council told Ms X it would accept no new evidence and it would investigate the complaint as Ms X had made it to Council B, in January 2022. Ms X raised concerns about the Council’s decision not to include new evidence.
In August 2023, the Council responded to Ms X’s complaint at the final stage of its complaints procedure. In its final response, the Council: Said there were 11 parts to Ms X’s original complaint.
Said that four of these 11 parts fell within the Council’s remit to respond to. These four parts were: Service J had acted outside its remit.
Concerns there had been disability discrimination.
Concerns about which body had commissioned Service J’s report.
Concerns that nobody had investigated a reported data breach at the first stage of the complaints procedure.
Said it agreed with Council B’s findings on all parts of the complaint. Council B had not upheld the first three parts of the complaint. Council B had upheld the final part of the complaint and apologised for this.
Said it did not need to comment or take further action.
Ms X brought her complaint back to the Ombudsman in late 2023. Besides the original complaint, Ms X raised further concerns about how Service J developed and implemented the policy it relied on to assess Child Y, and whether staff had misled the SEND Tribunal about this.
Analysis Ms X’s substantive complaint concerned whether Service J could competently assess Child Y, and whether it could therefore provide advice about his condition and the provision he would need. Ms X alleged Service J carried out a flawed assessment. This in turn led to unsuitable provision for Child Y over a prolonged period. Ms X also complained the Council’s decision not to provide an assistive aid was discriminatory, as it had relied on unsuitable advice.
Service J assessed Child Y because Section F of Child Y’s EHC Plan specified an assessment should take place. This part of Ms X’s complaint is therefore about the Council’s decisions on which experts to commission, and it relying on the resultant advice when deciding what provision it should, or should not, put in place.
Ms X has told the Ombudsman she has taken part in two appeals to the SEND Tribunal in relation to Child Y’s EHC Plan. The Ombudsman cannot consider any matters occurring before a right of appeal exists, which the SEND Tribunal could consider. This includes which reports and documents the Council commissioned or relied on in its decisions about what provision to put in place. The injustice caused by poor assessment, or flawed advice, is an EHC Plan that does not meet the child’s needs. This is a matter that parents can appeal to the SEND Tribunal, as the SEND Tribunal can decide if changes to provision, such as assistive aids, are necessary.
Further, even if not part of an appeal, complaints about the adequacy of professional assessments or the quality of reports sought to deliver provision are outside the Ombudsman’s jurisdiction to consider. The SEND Tribunal can consider the adequacy of professional reports and has powers to order the Council to obtain reports, if it decides this is necessary. The restriction to the Ombudsman’s jurisdiction set out in paragraph 12 therefore applies.
Ms X said she did not have a right of appeal against the Council’s decision to refuse the assistive aid until Child Y’s annual review, which took place some months later. This meant the time Child Y spent without an assistive aid was longer than it should have been. I understand Ms X believes the Ombudsman should consider the Council’s decision to refuse the assistive aid before an appeal right arose as wrong, given the SEND Tribunal changed this position later. Ms X said the SEND Tribunal could only consider future matters.
However, there was no fault in how the Council took this decision at the time. Section F of Child Y’s EHC Plan called for an assessment, which the Council commissioned. It then made a decision based on the facts available. The later annual review provided a right of appeal to the SEND Tribunal, which is the correct mechanism to dispute the Council’s decisions about special educational provision. Ms X exercised this right of appeal. I recognise Ms X strongly feels the Council’s initial decision was wrong and so the assistive aid should have been in place earlier, given the later SEND Tribunal decision. But as above, the Ombudsman cannot consider matters occurring before a right of appeal exists, which the SEND Tribunal could later consider.
Ms X told the Ombudsman staff from Service J misadvised the SEND Tribunal about when it created and imposed the policy it used to assess Child Y. It is not clear this would be within the Council’s remit to address, given Council B is the host authority for Service J. Nonetheless, the conduct of individuals during appeal proceedings is outside the Ombudsman’s jurisdiction. Such conduct would be a matter for the SEND Tribunal, which has powers to deal with non-compliance, make case management directions and cost orders. The restriction set out in paragraph 13 therefore applies.
For the reasons above, I cannot investigate these parts of Ms X’s complaint.
The second part of Ms X’s complaint concerned Service J’s intent when developing the policy it relied on when assessing Child Y. Ms X said Service J developed the policy with an intent to obstruct young people from obtaining assistive equipment already deemed necessary by medical professionals. She said the policy was not fit for purpose and discriminatory.
Again, it is not clear concerns about how Service J developed its policy would be for the Council to address, given Council B is the host authority. However, both the Council and Council B considered Ms X’s concerns about disability discrimination in how the policy had been applied to Child Y. Council B did not uphold this, explaining the decision made was based on professional judgement. The Council endorsed this view.
In terms of the policy’s practical application for Child Y, I again believe disputes about how Service J assessed Child Y, how the Council considered this assessment, and the practical implications of both, would be accounted for in the SEND Tribunal’s considerations. The question of whether the policy disadvantaged Child Y in its application is in practice too closely linked to matters the SEND Tribunal considered. I cannot therefore consider this now.
The final part of Ms X’s complaint concerns how the Council handled her complaint about Service J. It would not be a good use of public resources to investigate a complaint about complaint procedures, where we cannot deal with the substantive issue. I could not achieve anything for Ms X by looking at this part of the complaint by itself.
I have therefore ended my investigation of Ms X’s complaint on this basis.
Final decision
I have ended my investigation of Ms X’s complaint. Parts of the complaint are about matters which are part of, connected to, or could have been part of, an appeal to the SEND Tribunal. I cannot investigate these matters. I have not investigated the remainder of Ms X’s complaint. I cannot achieve anything for Ms X by investigating the remaining matters in isolation.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman