Summary: We will not investigate this complaint about the Council’s assessment of Ms X’s child’s special educational needs. The matter complained of is not separable from the disputed issue of the nature of the child’s special educational needs. That is a matter where Ms X had a right of appeal to the Special Educational Needs and Disability Tribunal.

The complaint

1. Ms X said the Council failed to comply with a Tribunal order to assess her child’s special educational needs (SEN). She said it failed to seek the professional advice it should have done.

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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. The courts have held that where someone has appealed to the SEND Tribunal, we have no authority to consider what educational provision should be made for the child concerned. (Local Government Act 1974, section 26(6)(a), R v the Commissioner for Local Administration ex parte PH, 1999);  R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407

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How I considered this complaint

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

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My assessment

7. The complaint correspondence Ms X sent me shows the Council issued a decision after a SEND Tribunal ruling in April 2021. Its decision gave Ms X a further right of appeal, a right she used. Even if the Council conceded her second appeal before a Tribunal hearing, that does not create jurisdiction for us to comment on what professional advice the Council should have sought after the earlier SEND Tribunal ruling. This is because the issue of the decision created a right of appeal it was reasonable for Ms X to use, and having used that right, we cannot supplant the role a further SEND Tribunal would have played.

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Final decision

8. We will not investigate Ms X’s complaint because the matter complained of is not separable from matters where Ms X had a right of appeal to a SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman