Summary: We will not investigate Mr X’s complaint that the Council failed to follow the proper process in considering requests for an Education Health and Care Needs Assessment for his child. This is because there is not enough evidence of fault by the Council. The injustice Mr X claims is primarily the result of the Council’s decisions not to carry out a needs assessment and if Mr X disagreed with the decisions it would have been reasonable for him to appeal.

The complaint

1. The complainant, Mr X, complains about the way the Council handled requests for an Education Health and Care Needs Assessment (EHCNA) for his child Y. He says the Council did not invite him to provide evidence before reaching its decision and did not provide its reasons for refusing an assessment. He claims the Council failed to follow the proper process and that its decision was flawed.

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The Ombudsman’s role and powers

2. 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)
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. We may decide to investigate if we consider it would be unreasonable to expect the person to appeal but cannot investigate if the person has already appealed. (Local Government Act 1974, section 26(6)(a), as amended)
4. 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.

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How I considered this complaint

5. I considered information provided by Mr X and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Mr X asked the Council to carry out an EHCNA for Y on or around 5 September 2022. There are strict time limits that apply to this process so the Council had six weeks to consider the request and issue a decision.
8. The Council wrote to Mr X acknowledging the request and explaining he could provide further information. It also wrote to Y’s school asking for evidence to inform its decision. The school had two weeks to provide the information but it failed to respond. Three weeks after the expiry of the deadline the Council wrote to Mr X confirming it did not intend to carry out an EHCNA as there was insufficient evidence of need. This decision carried a right of appeal to the SEND Tribunal which it would have been reasonable for Mr X to use if he disagreed with it.
9. Y’s school wrote to the Council requesting an EHCNA shortly after its initial decision and the Council wrote to Mr X to confirm it would consider the request. It again told Mr X that he could provide further information if he wished.
10. The Council considered the case further but reached the same conclusion not to proceed to an EHCNA. The decision letter explained it felt Y’s needs could be met through support available from resources that were available at their education setting and that an EHCNA was not therefore required. This letter again informed Mr X of his right of appeal.
11. While Mr X is unhappy about the Council’s handling of the process I have seen no evidence of fault or to show the actions it took as part of the process caused Mr X or Y significant injustice. The Council considered both requests within the statutory timescales and issued decisions explaining the reasons for its decisions and informing Mr X of his right of appeal. The Council cannot be held responsible for the school’s delay and had it not issued an initial decision when it did it would have failed to meet the deadline and delayed Mr X’s ability to appeal.
12. I appreciate Mr X is unhappy with the level of detail provided in the Council’s decision letter but it is sufficient to explain its reasons for not proceeding to an EHCNA. The Council also agreed to meet with Mr X to discuss the decision and carried out this meeting within 15 working days, which was acceptable in the circumstances.
13. It is clear Mr X continues to disagree with the Council’s decision not to carry out an EHCNA but if he considers this is wrong, whether due to flawed judgement or process, it would have been reasonable for him to appeal to the SEND Tribunal.
14. It is not for us to reach a decision on whether the Council should carry out an EHCNA so even if we had found evidence of fault in the process we could not say this wrongly affected the Council’s decision.

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Final decision

15. We will not investigate this complaint. This is because there is not enough evidence of fault by the Council in its handling of the requests for an EHCNA and if Mr X disagreed with the Council’s decisions not to carry out an assessment it would have been reasonable for him to appeal.

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Investigator's decision on behalf of the Ombudsman