Summary: We cannot investigate Mrs X’s complaint that the Council refused to obtain an occupational therapy assessment following a review of her son’s needs causing her distress and significant costs. Mrs X appealed to the special educational needs tribunal and therefore we cannot lawfully investigate.

The complaint

1. Mrs X complains the Council failed to properly assess her son’s needs following a review in October 2019 of his educational health care plan and transition to secondary school. Mrs X says when she asked the Council to obtain an occupational therapy assessment it refused. Mrs X says she was forced to appeal to the special educational needs and disability tribunal where the Council accepted the findings of her occupational therapy report. She says the Council should apologise for causing time, trouble, and distress. Mrs X wants the Council to pay compensation including the cost of the occupational therapy report and legal expenses. She says the Council should improve its practice.

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The Ombudsman’s role and powers

2. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
3. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))

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How I considered this complaint

4. I have considered Mrs X’s information and comments. The Council has provided the complaint correspondence and the email exchange on the need for an occupational therapy (OT) assessment. I have considered the law on special educational needs reviews and transition to secondary school.

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What I found

5. The Special Educational Needs and Disability Regulations (2014) set out what councils must do when reviewing educational health care (EHC) plans and considering a transition to secondary school. A review must obtain advice and information from specified people. Any amendment to the EHC plan must be issued by 15 February in the year of the child’s transfer (regulation 18).
6. In October 2019, the Council held a review of the EHC needs and plan. Mrs X’s son was due to start secondary school in September 2020. In January 2020, the Council issued a draft EHC plan. On 31 January Mrs X asked the Council to obtain an occupational therapy assessment. She says the Council knew from the information held that there was a need for such an assessment. On 6 February, the Council refused to obtain an occupational therapy assessment. It advised Mrs X she could ask the school nurse or another health professional to arrange. The Council says it issued an amended EHC plan on 17 February. This gave Mrs X the right to appeal.
7. Mrs X appealed to the SEND Tribunal. She paid for a private occupational therapy report, dated June 2020, and used a solicitor. In September 2020, the SEND Tribunal concluded the appeal by issuing a consent order, the parties having reached agreement. Costs were not awarded. Mrs X says the Council accepted all the recommendations in the OT report regarding the EHC needs and provision and amended the EHC plan.

Analysis

8. I cannot investigate this complaint which is outside the Ombudsman’s jurisdiction for the following reasons:
9. Mrs X has used her right of appeal to the SEND Tribunal (see paragraph 2 above). The Ombudsman cannot investigate the Council’s actions from February 2020 when the appeal right arose. This includes the dispute about the EHC needs and provision and actions relating to the consent agreement.
10. We cannot investigate Mrs X’s decision to pay for a private OT report, which was done for the appeal, or the use of a solicitor. The Tribunal has some powers to award costs but the courts have said where costs are not available, or not awarded, an appellant cannot seek them from the Ombudsman.
11. The Council followed the correct procedure and there is no significant delay in reviewing the EHC plan (see paragraph 5 and 6). There is no injustice which is separable from the appeal.

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Final decision

12. The Ombudsman cannot investigate Mrs X’s complaint that the Council refused to obtain an occupational therapy assessment following a review of her son’s needs causing her distress and significant costs. Mrs X appealed to the special educational needs tribunal and therefore we cannot lawfully investigate.

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Investigator's decision on behalf of the Ombudsman