Summary: We will not investigate this complaint about how the Council carried out an Education Health and Care assessment for a child. This is because the complainant has used their right of appeal to the SEND Tribunal and because we could not add to the investigation carried out by the Council.

The complaint

1. Mrs X complains about how the Council carried out an Education Health and Care (EHC) assessment for her child. Mrs X says the Council failed to source appropriate assessments and delayed making a decision whether to issue an EHC plan or not.

Back to top

The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide we could not add to any previous investigation by the organisation. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
3. 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)
4. 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.

Back to top

How I considered this complaint

5. I considered information provided by the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

7. In April the Council received a request to carry out an EHC assessment for Mrs X’s child. The Council refused so Mrs X appealed to the SEND Tribunal which ordered the Council to carry out an assessment in early September.
8. The Council decided not to issue Mrs X’s child with an EHC plan in January and Mrs X has submitted a further appeal to the SEND Tribunal which is ongoing.
9. I cannot investigate Mrs X’s complaint that the Council failed to source appropriate assessments during the EHC process. This is because this issue is not separable from the Council’s decision not to issue an EHC plan which is subject to Mrs X’s appeal to the SEND Tribunal. Furthermore, the SEND Tribunal has wide powers itself to order reports be completed.
10. I will not investigate Mrs X’s complaint about delays in making its decision. The Council accepted that the decision not to issue an EHC plan was made late, it apologised to Mrs X and offered to make a payment to her of £200 in to remedy the injustice this caused. The Council’s proposed remedy is in line with what we would seek to achieve. Therefore, further investigation could not add to the one carried out by the Council.

Back to top

Final decision

11. We will not investigate Mrs X’s complaint because she has used her right of appeal to a tribunal and we could not add to the investigation carried out by the Council.

Back to top

Investigator's decision on behalf of the Ombudsman