The Ombudsman's final decision
Summary: We cannot investigate this complaint about the Council’s assessment of the complainant’s daughter’s needs. This is because he has used his right to appeal to a tribunal and this places the matter outside our jurisdiction.
The complaint
The complainant, who I will refer to as Mr C, complains that the Council was at fault during the assessment of his daughter’s needs. As a result, the Education Health and Care Plan (EHCP) it produced was flawed, and Mr C has been compelled to appeal against its content.
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 we can decide not to investigate a complaint about any action by a council concerning a matter which is outside 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.
I considered the Ombudsman’s Assessment Code.
My assessment
The Council carried out an assessment of Mr C’s daughter’s needs. Mr C complains that, in order to meet the timescale for issuing an EHCP set out in statutory guidance, the Council failed to produce an EHCP which meets his daughter’s needs. As a result, he has been forced to appeal to the SEND Tribunal.
The Ombudsman cannot investigate Mr C’s complaint about fault in the production of the EHCP. The alleged injustice caused by the fault he has identified is precisely the content of the EHCP. They are not separable. Mr C has used his right to appeal to the SEND Tribunal. This places matters relating to the assessment itself outside the Ombudsman’s jurisdiction. We cannot intervene.
Final decision
We cannot investigate Mr C’s complaint because he has used his right to appeal to a tribunal.
Investigator's decision on behalf of the Ombudsman