Decision : Closed after initial enquiries
Decision date : 14 May 2019
The Ombudsman's final decision:
Summary: The Ombudsman cannot investigate Mrs X’s complaint about how the Council assessed the special educational needs of her son. Mrs X has appealed to the SEND Tribunal.
- Mrs X complains that the Council failed to obtain an up to date occupational therapy report when assessing her son’s special educational and health care needs. Mrs X says the Council’s failures resulted in the family paying £550 for a private occupational therapy assessment. She says the Council actions prolonged the period of assessment and caused stress. She says the Council should acknowledge its failures, accept the recommendations in the private assessment and pay for the report.
The Ombudsman’s role and powers
- We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
- We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
- SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
How I considered this complaint
- I have considered Mrs X’s information and comments and the Council’s replies to her complaint.
What I found
- In the Autumn of 2018, Mr and Mrs X asked the Council to assess their son’s education and health care (EHC) needs. They asked the Council to get an updated occupational therapist (OT) report on their son’s sensory needs and how they affect him at school. Mr and Mrs X say the Council was wrong to rely on an OT view based on outdated information from 2017. The Council says it sought professional advice as it should.
- In December 2018 Mr and Mrs X obtained a private OT assessment because the Council refused to get an updated one. They say the Council later asked its OT to observe their son at school and comment on their report. However, they do not believe the Council met its legal obligations when doing the assessment.
- Mrs X tells me the Council issued a final EHC plan in March 2019. She says the Council has not accepted the recommendations of their private OT report about the type of environment and support her son needs.
- Mrs X has appealed to the SEND Tribunal. She says the appeal includes the description of her son’s special education needs and the provision in the EHC plan. Mrs X says her complaint to this office is about the process of assessment not the content of the EHC plan.
- I will not investigate this complaint for the following reasons:
- The complaint is outside the Ombudsman’s jurisdiction because Mrs X has appealed to the SEND Tribunal (see paragraphs 3 and 4 above). The Ombudsman cannot investigate.
- The Ombudsman cannot investigate the process of assessment because the matter of the complaint, the Council’s actions regarding the OT assessment, is inextricably linked to the subject of the appeal to the SEND Tribunal.
- The Ombudsman cannot seek from the Council the cost of the OT report or other compensation. This is because, once a right of appeal has been used, the law provides only the remedy available from the Tribunal. That is so even where the Tribunal cannot remedy all the claimed injustice.
- The Ombudsman cannot investigate Mrs X’s complaint about how the Council assessed the special educational needs of her son. Mrs X has appealed to the SEND Tribunal.
Investigator's decision on behalf of the Ombudsman