Summary: We cannot investigate Mrs X’s complaint about the Council’s actions during the Education Health and Care Plan process for her daughter. Mrs X has appealed the contents of the Plan. The law says we cannot consider a complaint where the substantive matter is being considered at a Tribunal.

The complaint

1. Mrs X complained:
• the Council did not carry out a Speech and Language Therapy (SALT) assessment during the assessment stage for her daughter’s Educational Health and Care Plan (EHC Plan).
• the Council used unlawful policies during the EHC Plan process for her daughter.

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The Ombudsman’s role and powers

2. The law says we cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)

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How I considered this complaint

3. I considered information provided by the complainant and the Council.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. Mrs X’s complaint is in two parts:
• The Council alleged failure to carry out a SALT assessment as part of the EHC Plan process; and
• The use of allegedly unlawful policies when carrying out the EHC process. Mrs X has evidence obtained through a subject access request which she says confirms the policies are unlawful.
6. Mrs X has submitted an appeal of the EHC Plan. She said the final tribunal hearing is in October 2021.
7. Mrs X has argued the Tribunal will not consider the Council’s policies as part of the appeal process.
8. The Courts have said that we cannot investigate a complaint about any action by a council, concerning a matter which is itself out of our jurisdiction. (R (on the application of M) v Commissioner for Local Administration [2006] EHWCC 2847 (Admin)) Because the Council used its policies to decide the EHC Plan content, we cannot investigate the lawfulness of these policies. Similarly, Mrs X is appealing the lack of a SALT assessment, so we cannot look at this.

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Final decision

9. We cannot investigate Mrs X’s complaint because she has appealed the substantive issue to a tribunal.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman