The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about the Council’s refusal to assess his child’s special educational needs, not assessing properly, and refusing to issue an Education Health and Care Plan. These matters are not separable from those where Mr X has or had a right to appeal to the Special Educational Needs and Disability Tribunal it would be reasonable to use.
The complaint
Mr X said the Council: Wrongly refused to assess his child’s special educational needs (SEN); then Failed to seek the relevant information from professionals; and then Wrongly refused to issue an Education Health and Care (EHC) Plan for his child.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended).
In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal…such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.
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.
I considered the Ombudsman’s Assessment Code.
My assessment
The Council’s refusal to assess Mr X’s child’s SEN, and its refusal to issue an EHC Plan, both carried a right of appeal to the SEND Tribunal. The information sought or not sought by the Council in forming its decision not to issue an EHC Plan is closely related to the nature of the child’s SEN, which were or would be for the SEND Tribunal to decide. That the Council may subsequently agree or have already agreed to issue an EHC Plan does not allow us to substitute our view of the child’s SEN for that earlier taken by the Council giving rise to the right of appeal.
Final decision
We will not investigate Mr X’s complaint because the matters he complains of are either matters in respect of which he has or had a right of appeal to a Tribunal it would be reasonable to use, or are closely linked to those matters.
Investigator's decision on behalf of the Ombudsman