Summary: We will not investigate this complaint relating to the Council’s decision not to carry out an Education Health and Care assessment for the complainants daughter. This is because the complainant appealed the decision to the Special Educational Needs and Disability Tribunal.

The complaint

1. The complainant, who I will call Mrs C, complains about matters relating to the Council’s decision not to assess her daughter for an Education Health and Care (EHC) plan. Mrs C complains about how the Council considered her request, how it responded to a Subject Access Request relating to the request and how it dealt with her complaint about the matter.

Back to top

The Ombudsman’s role and powers

2. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
3. 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.
4. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

Back to top

How I considered this complaint

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

Back to top

My assessment

7. I will not investigate Mrs C’s complaint about the Council’s decision not to carry out an EHC assessment. Mrs C appealed the Council’s decision to the SEND Tribunal. The Council’s actions in reaching its decision are not separable from the SEND Tribunal’s decision.
8. I will not investigate Mrs C’s complaint about how the Council responded to her SAR. This is because Mrs C has raised this matter with the Information Commissioner, who is better placed to deal with such matters.
9. Finally, I will not investigate Mrs C’s complaint about how the Council responded to her complaint. It is not a good use of public resources to investigate complaints about complaint handling, if we are not dealing with the substantive issue.

Back to top

Final decision

10. We will not investigate Mrs C’s complaint because she appealed the Council’s decision at tribunal.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman