The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s alleged failure to provide support for the complainant’s daughter, and about the process of deciding to decline to carry out an Education Health and Care Needs Assessment. This is because the matters complained of are not separable from a decision which is itself outside the Ombudsman’s jurisdiction.
The complaint
The complainant, who I will refer to as Ms B, complains that the Council has been at fault in failing to provide appropriate support for her daughter and in refusing to carry out an 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 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
Ms B says her daughter has special educational needs. She asked the Council to carry out an EHCNA and it declined. She has used her right to appeal to the SEND Tribunal against this decision.
Ms B complains that the Council has failed to provide the support to which her daughter is entitled. She says the Council operates an unlawful threshold for an EHCNA and that the way it gathers evidence is discriminatory. In her view the Council’s actions amount to gatekeeping. She argues that she has been unreasonably compelled to appeal.
The Ombudsman will not investigate Ms B’s complaint. The alleged fault about which she complains is inextricably linked with the Council’s decision not to carry out an EHCNA. Ms B has used her right to appeal and this places all matters relating to the decision outside our jurisdiction. This is the case, even though the Tribunal may not consider the specific matters Ms B has raised. We cannot intervene.
Final decision
We will not investigate Ms B’s complaint because it is not separable from a matter which is itself outside our jurisdiction.
Investigator's decision on behalf of the Ombudsman