The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s decision not to reimburse costs the complainant incurred due to its failure to attend a mediation meeting because there is no evidence of fault in the way it made this decision.
The complaint
The complainant, who I will refer to as Mrs X, complains that the Council: failed to attend an arranged mediation meeting, causing her to incur costs which it has not subsequently reimbursed; and failed to carry out appropriate assessments in the course of her child’s Education Health and Care Needs Assessment (EHCNA).
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6), as amended, section 34(B)) We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (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.
I considered the Ombudsman’s Assessment Code.
My assessment
The Council carried out an EHCNA of Mrs X’s child, the result of which was that it declined to issue an Education Health and Care Plan (EHCP). Mrs X disagreed with the Council’s decision and initiated mediation.
The mediation meeting was arranged but the Council failed to attend. Mrs X therefore used her right to appeal to the SEND Tribunal. The Council subsequently conceded the matter.
Mrs X says the Council’s failure to attend caused her financial loss, in that she lost earnings and incurred the costs of engaging an advocacy service. She also says it is possible that, if the Council had attended, the matter may have been concluded without the need to submit her appeal.
The Ombudsman will not investigate this matter. The Council has offered a payment to recognise the fact that it failed to attend but has declined to reimburse Mrs X’s costs. The question for the Ombudsman is not whether the costs should be reimbursed. Rather, it is whether there is evidence of fault in how the Council reached its view. There is no such evidence. The decision to engage an advocacy service was one for Mrs X to make, and the Council’s decision not to bear the associated costs is defensible in the circumstances.
Neither is it for the Ombudsman to speculate whether the Council’s attendance at mediation is likely to have led to a different outcome. We can make no such finding.
The fact that Mrs X used her right to appeal places the alleged flaws in the EHCNA outside our jurisdiction. The courts have held that, when an appeal has been made, we cannot investigate matters which the SEND Tribunal could itself consider. This applies to the information considered during the EHCNA and is the case whether or not the appeal proceeds to a hearing. So, the fact that the Council conceded Mrs X’s appeal is not relevant. There is no discretion available to us on this matter.
Final decision
We will not investigate Mrs X’s complaint because there is insufficient evidence of fault on the Council’s part, and she has used her right to appeal to the SEND Tribunal.
Investigator's decision on behalf of the Ombudsman