The Ombudsman's final decision
Summary: We cannot investigate Mrs X’s complaint about information the Council obtained and considered before reaching the decision not to carry out an Education Health and Care needs assessment for her child. This is because Mrs X has used her right of appeal to a tribunal
The complaint
Mrs X complains about information the Council obtained and considered before making its decision not to carry out an Education Health and Care (EHC) needs assessment for her 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.
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 – SEND) considers appeals against council decisions regarding special educational needs. We refer to it as the 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
We cannot investigate the Council’s decision not to carry out an EHC needs assessment for Mrs X’s child. This is because she has appealed this decision to the SEND Tribunal. The law says the Ombudsman cannot investigate any matter that has been appealed to a Tribunal or issues that are closely related to a matter under appeal.
Mrs X’s complaint is that the Council failed to obtain or properly consider relevant assessments before making its decision. However, the consequences of this would be that the Council’s decision not to assess was wrong and therefore the matter appealed is too closely linked to the complaint. Consequently, we cannot investigate Mrs X’s complaint.
Final decision
We will not investigate Mrs X’s complaint because she has used her right of appeal to a tribunal
Investigator's decision on behalf of the Ombudsman