The Ombudsman's final decision
Summary: We cannot investigate this complaint about how the Council carried out an Education Health and Care needs assessment. This is because the complainant has used their right to appeal about the outcome to a tribunal, which places the matter outside our jurisdiction.
The complaint
The complainant, who I will call Mrs X, complains that the Council was at fault in how it carried out an Education Health and Care (EHC) needs assessment for her daughter. She says the Council should properly assess her daughter and issue an EHC plan.
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 cannot investigate a complaint if someone has appealed to a tribunal. (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 Courts have said that we cannot investigate a complaint about any action by a council, concerning a matter which is itself out of our jurisdiction. (R (on the application of M) v Commissioner for Local Administration [2006] EHWCC 2847 (Admin))
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Mrs X asked the Council to carry out an EHC assessment of her daughter’s Special Educational Needs. The Council agreed to the assessment which it completed in July 2021. The Council wrote to Mrs X and informed her that it had decided not to proceed with issuing an EHC plan. Mrs X subsequently appealed the decision.
We cannot investigate this complaint because Mrs X has used her right of appeal to the SEND tribunal. By law, this places all matters which relate to the decision not to issue an EHCP outside our jurisdiction. The alleged failings in assessment process are not separable from the decision not to issue an EHCP. Therefore, the Ombudsman cannot investigate them.
Final decision
We will not investigate Mrs X’s complaint because she has appealed the matter to a tribunal.
Investigator's decision on behalf of the Ombudsman