Essex County Council (21 014 495)

Category : Education > Special educational needs

Decision : Closed after initial enquiries

Decision date : 04 Feb 2022

The Ombudsman's final decision:

Summary: We will not investigate this complaint about how the Council assessed a child’s special educational needs. This is because this concerns a matter which has been appealed to a tribunal. We will not investigate other elements because they are either late or have not yet been considered by the Council.

The complaint

  1. The complainant, who I will call Mr X, complains about how the Council assessed his son’s Special Educational Needs (SEN). Mr X complains about how the Council carried out an Education Health and Care needs assessment which he says resulted in an inadequate EHC plan being produced which did not meet his son’s needs. Mr X also says the Council should have carried out the assessment sooner, after its involvement with his son in January 2019. Mr X also complains about the actions of the Council after it conceded his appeal about the EHC plan to a tribunal.

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The Ombudsman’s role and powers

  1. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  2. 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.
  3. 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))
  4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  5. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)

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How I considered this complaint

  1. I considered information provided by the complainant.
  2. I considered the Ombudsman’s Assessment Code.

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My assessment

  1. I cannot investigate Mr X’s complaint about how the Council carried out an EHC assessment of his son’s needs. This is because he has appealed the contents of the EHC plan to the SEND tribunal. The courts have made it very clear that we cannot investigate complaints about any action by a council, if they concern a matter which is outside our jurisdiction. The is therefore prevents us from considering Mr X’s concerns about the assessment process.
  2. I will not investigate Mr X’s complaint that the Council should have started an assessment in January 2019. This is because this matter happened too long ago, and I see no reason why Mr X could not have complained about it sooner.
  3. Finally, I will not investigate Mr X’s complaint about the Council’s actions after the tribunal proceedings were completed. This is because Mr X has not raised a complaint with the Council about these concerns and so it has not had an opportunity to investigate and respond to this part of his complaint. If once the Council has considered these matters, Mr X can raise a new complaint with the Ombudsman if he remains dissatisfied with the Council’s response.

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Final decision

  1. We will not investigate Mr X ’s complaint because the matter has been subject to an appeal to a tribunal. Other elements are late or have not yet been considered by the Council.

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Investigator's decision on behalf of the Ombudsman

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