Summary: The Ombudsman will not investigate Mr X’s complaint about the evidence used to support the Council’s proposals in an Education Health and Care Plan. The Tribunal is deciding whether those proposals are adequate and we cannot investigate the same issues as a Tribunal.

The complaint

1. The complainant, whom I shall call Mr X, says the Council used an inaccurate Educational Psychologist’s report to decide what its Education Health and Care Plan (EHC Plan) should say.

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The Ombudsman’s role and powers

2. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
3. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
4. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
5. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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How I considered this complaint

6. I considered the information Mr X provided with his complaint which included the Council’s replies. Mr X had the opportunity to comment on a draft version of this decision.

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What I found

7. Mr X says the Council used an Educational Psychologist to assess his child’s special educational needs. He says their report is inaccurate. He says it has been used by the Council in its case currently before the Tribunal. Mr X says the Council should not have done so. It says the report is based on scant information. He says the Educational Psychologist’s recommendations are based around an inaccurate diagnosis applied to his child.
8. A child with special educational needs may have an EHC plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
9. Mr X has appealed the EHC Plan to the Tribunal. He also complained to the Council. The Council said Mr X has the opportunity to put his arguments to the Tribunal.
10. Mr X says the Council used the wrong complaints’ process to reply to his complaint. He says it should have been replied to it within its Children Act statutory complaints’ procedure.

Analysis

11. The Tribunal is deciding what the EHC Plan should say. It is reasonable to expect Mr X to tell the Tribunal why he believes the Council’s proposals are wrong. This would naturally include his arguments about the Council’s inadequate evidence to support its view, including the Educational Psychologist’s report.
12. The Children Act statutory complaints procedure is for specific duties and application of set sections of the Children Act. The assessments for special educational needs are not covered by that complaints’ procedure.

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Final decision

13. The Ombudsman will not and cannot investigate this complaint. This is because Mr X’s Tribunal appeal inextricably covers the crux of his complaint.

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Investigator's decision on behalf of the Ombudsman