The Ombudsman's final decision
Summary: We cannot investigate this complaint about the Council’s decision to refuse the complainant’s request for an Education Health and Care Assessment for her son, and that it has failed to ensure he has access to full time education. This is because the complainant has used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability).
The complaint
The complainant, who I will refer to as Miss X, complains that the Council is at fault in refusing her request for an Education Health and Care Assessment (EHCNA) for her son and in failing to ensure he has access to full time education.
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 about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (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.
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Miss X says her son is currently unable to access full time education without support. Miss X asked the Council for an EHCNA, with a view to obtaining an Education Health and Care Plan (EHC Plan).
The Council declined to carry out an EHCNA. Miss X regards this decision as flawed and discriminatory. She says that an EHC Plan is needed to enable her son’s special educational needs to be met. She wants the matter reconsidered and her son’s needs properly addressed.
The Ombudsman cannot investigate Miss X’s complaint. This is because she has used her right to appeal against the Council’s decision to the SEND Tribunal. The law says that, where an appeal has been made, we have no jurisdiction to consider the decision about which the appeal has been made. We have no discretion on this matter. This means we cannot investigate whether the Council was at fault in refusing to carry out an EHCNA.
The courts have also established that if someone has appealed to the SEND Tribunal, we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207). The fact that Miss X’s son is not attending school is linked to the matter which is the subject of her appeal. We cannot therefore investigate the lack of educational provision.
Final decision
We cannot investigate Miss X’s complaint because she has used her right to appeal to the SEND Tribunal.
Investigator's decision on behalf of the Ombudsman