Summary: Mr X complained the Council failed to arrange a proper assessment of his daughter’s needs and then refused to refund the costs of the assessment when he commissioned it. I have discontinued my investigation because the Ombudsman cannot investigate this complaint. This is because the matter is inextricably linked to the matters considered by the Special Educational Needs and Disability Tribunal and is, therefore, outside our jurisdiction.

The complaint

1. Mr X complained the Council failed to discharge its duty to assess his daughter, Ms D’s, special educational needs for specialist technology to allow her to access the educational curriculum.
2. Mr X says that as a result, he had to pay for the assessment at a cost of around £4,000 to ensure Ms D’s needs and specialist requirements were appropriately identified.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
5. Caselaw has established that where someone may appeal to the SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal.

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How I considered this complaint

6. I spoke to Mr X and considered the information he provided. This included copies of the SEND Tribunal orders and complaints correspondence.
7. Mr X and the Council had an opportunity to comment on my draft decision.

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What I found

8. A child with special educational needs may have an Education, Health and Care (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. The Ombudsman cannot direct changes to the sections about education or name a different school. Only the SEND Tribunal can do this.
9. Ms D has had an EHC Plan for many years. In 2018, Mr X appealed to the SEND Tribunal about the contents of Ms D’s EHC Plan and the placement named in the Plan.
10. At an interim hearing, Mr X argued an up to date assessment by a specialist consultancy was needed, which would have to be commissioned privately because of Ms D’s particular disabilities. The SEND Tribunal explained it was legally unable to order the Council to commission the assessment.
11. The Council did not commission the assessment from a specialist consultancy because it said it had sufficient expertise to properly assess Ms D’s needs and requirements.
12. Mr X commissioned the assessment which cost £4,000.
13. At the final SEND Tribunal hearing, the assessment was included as part of the Tribunal papers and the Council accepted most of the recommendations in the assessment.
14. Mr X complained the Council was at fault for not accepting the recommendations earlier. He said the Council should reimburse him for the costs of the assessment.
15. The Council responded that the recommendations in the report were not suitable for a classroom setting. Previously, both parties considered Ms D could be educated in a school setting. However, by the time of the final SEND Tribunal hearing, both sides had decided Ms D should be educated at home. Therefore, the recommendations were accepted.

My findings

16. Caselaw has established that where someone may appeal to the SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. Mr X commissioned the assessment because he was concerned that without up to date information, the SEND Tribunal would be unable to properly consider Ms D’s needs and requirements. The information in the assessment was considered as part of the matters under appeal. Therefore, Mr X’s complaint is inextricably linked to the SEND Tribunal case and we cannot consider it.

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Final decision

17. The Ombudsman cannot consider this complaint. This is because the matters complained about are inextricably linked to Mr X’s appeal to the SEND Tribunal and, therefore, are outside the Ombudsman’s jurisdiction.

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Investigator's decision on behalf of the Ombudsman