The Ombudsman's final decision
Summary: We will not investigate this complaint about the assessment of Miss X’s special educational needs and the provision she requires. These are closely linked to matters in respect of which Miss X has exercised her right to appeal to a Tribunal.
The complaint
Miss X complained via a representative that the Council has failed to update an educational psychology (EP) assessment that was out of date despite promising verbally to do so at a review of her Education Health and Care (EHC) Plan. She said it also failed to allocate extra funds for subject specialist tuition to be provided by a tuition company.
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) 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.
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…”.
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
The matters Miss X complains of are directly related to her special educational needs. She has appealed against a EHC Plan the Council issued earlier this year. That means we have no legal power to consider whether the Council should assess her needs again via an EP or allocate extra funds for the tuition company to assist her. Even if there might have been a verbal promise by the Council at a review meeting to assess again does not create a legal power for us to investigate here.
Final decision
We will not investigate Miss X’s complaint because the matters she complains of are closely linked to matters subject to an appeal to the SEND Tribunal.
Investigator's decision on behalf of the Ombudsman