Summary: We cannot investigate this complaint about the Council dealt with assessment and issuing of an Education Health and Care plan. This is because the complainant has used their right of appeal to a tribunal.

The complaint

1. The complainant, who I will call Mrs X, complains that the Council delayed assessing an issuing a final Education Health and Care (EHC) plan for her daughter. Mrs X says the Council’s decision to refuse to assess his daughter and its subsequent decision not to issue an EHC plan has meant the process has taken eighteen months, during which time her daughter’s needs have not been met and Mrs X has gone to significant time and trouble.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
4. 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.

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How I considered this complaint

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

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My assessment

7. Mrs X’s daughter has special educational needs. In September 2019, she asked the Council to carry out an EHC assessment. It refused to Mrs X successfully appealed to the SEND Tribunal.
8. The Council then carried out an assessment but concluded that it did not need to issue an EHC plan. Mrs X again successfully appealed to the SEND tribunal, and the Council subsequently issued a final EHC plan.
9. I cannot investigate Mrs X’s complaint because she has used her right of appeal to a tribunal. The law has decided that, when an appeal to the SEND Tribunal has been made, all matters relating to the issues which are subject to the appeal fall outside the Ombudsman’s jurisdiction. The Courts have confirmed that this restriction applies to provision made, or not made, between the date at which appeal rights were engaged and the end of the appeal process. There is no discretion available to us on this matter. 

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Final decision

10. I cannot investigate Mrs X’’s complaint because she has used her right of appeal to a statutory tribunal.

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Investigator's decision on behalf of the Ombudsman