The Ombudsman's final decision
Summary: We will not investigate this complaint about how the Council managed a request for an Education Health and Care needs assessment. We could not add to the investigation carried out by the Council and investigation would not lead to a different outcome.
The complaint
Miss X complains about how the Council managed an application for an Education Health and Care (EHC) needs assessment for her child. Miss X says the Council refused the application because a report was not received and that she was incorrectly told that she had no right of appeal against the decision.
The Ombudsman’s role and powers
We investigate 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 continue an investigation if we decide: we could not add to any previous investigation by the organisation, or further investigation would not lead to a different outcome.
(Local Government Act 1974, section 24A(6), as amended, section 34(B)) 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) 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
When Council’s decide not to carry out an EHC needs assessment, parents have a right of appeal to the SEND Tribunal, an appeal right that in this case it was reasonable for Miss X to have used. An appeal to the SEND tribunal could have challenged what information and reports were considered when the Council made its decision.
I do note that Miss X says she was told she had no appeal right and that she did not receive a letter the Council sent advising her of that appeal right. However, I will not investigate this element of Miss X’s complaint because we could not add to the Council’s investigation. The Council found that the decision letter was sent by post and that there was no record of what was discussed during the call with Miss X. We could not hold the Council responsible for a failure in the postal system and could not make a robust decision about what was discussed during the call without supporting evidence.
The Council made another decision not to assess recently. I will not investigate this matter because the Council has reversed its decision and is now carrying out an EHC needs assessment. Therefore further investigation would not lead to a different outcome.
Final decision
We will not investigate Miss X’s complaint because we could not add to the investigation carried out by the Council and investigation would not lead to a different outcome.
Investigator's decision on behalf of the Ombudsman