The Ombudsman's final decision
Summary: We will not investigate Mrs X’s complaint about how the Council completed an assessment for an Education Health and Care plan for her child Y. Mrs X has appealed to the Tribunal, and we cannot investigate the same issues. We can’t decide whether any delay in the Council finalising the Education Health and Care plan has caused an injustice until the Tribunal has reached a conclusion.
The complaint
Mrs X complained about the way the Council assessed her child, Y’s special educational needs. She said the Council failed to: Get the necessary specialist assessments, which meant she had to pay for private assessments.
Include the recommendations from the private assessments in the final Education Health and Care plan (EHC plan).
Issue Y’s final EHC plan within the statutory timeframes, delaying her right to appeal.
Mrs X wants the Council to reimburse the costs of the private assessments and to amend the EHC plan.
The Ombudsman’s role and powers
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.
We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended) The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
The Council started the EHC needs assessment for Y in January 2021. It issued Y’s final EHC plan in September 2021. Mrs X confirmed she is currently appealing the contents and provision specified in the EHC plan to the SEND Tribunal. We cannot investigate matters which have been appealed to the SEND Tribunal.
The Ombudsman can consider the Council’s delays in issuing the final EHC plan. However, it is not possible to consider the effect of those delays and what provision Y may have potentially missed until the Tribunal process concludes and the final EHC plan is known.
Final decision
We will not investigate Mrs X’s complaint because we cannot investigate the same issues the Tribunal is considering. We cannot assess any injustice caused to Y from the delay in issuing the Education Health and Care Plan, until the Tribunal has concluded.
Investigator's decision on behalf of the Ombudsman