Summary: We cannot investigate this complaint about the Council’s decision not to carry out an Education Health and Care Needs Assessment. This is because the complainant has used their right of appeal. This places the matter outside the Ombudsman’s jurisdiction.

The complaint

1. The complainant, whom I shall refer to as Ms X, complained about the Council’s decision not to carry out an Education Health and Care Needs Assessment (EHCNA). Ms X is unhappy with how the Council reached the decision. Ms X says her views were not considered and the Council failed to follow the correct process. Ms X questioned the qualifications of those involved in the decision and is also unhappy with the way the Council dealt with her complaint.

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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.
5. The courts have said we can decide not to investigate a complaint about any action by a council concerning a matter which is outside our jurisdiction. (R (on the application of M) v Commissioner for Local Administration [2006] EHWCC 2847 (Admin))
6. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)

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How I considered this complaint

7. I considered information provided by the complainant and the Council.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. An EHCNA is the first stage in obtaining an Education Health and Care Plan (EHCP) for a child with special educational needs. If a council declines to carry out an EHCNA, parents can appeal the decision to the SEND Tribunal.
10. The Council initially declined Ms X’s request for an EHCNA. Ms X used her right of appeal to the SEND Tribunal. This means we cannot investigate her complaint. The way the Council reached the decision and the decision itself are inextricably linked. The whole matter is therefore outside our jurisdiction This exclusion also applies to connected matters, even if the Tribunal could not consider them.
11. Ms X is unhappy with how the Council has dealt with her complaint. But the complaint is about a matter which is outside our jurisdiction. We cannot therefore consider how the complaint itself was dealt with. Even if this exception did not apply, we will generally not look at complaint handling as a standalone issue.
12. After Ms X appealed to the Tribunal, the Council decided to carry out an EHCNA. If the Council decides not to issue an EHCP, or Ms X is unhappy with the content of an EHCP the Council issues, she can submit a fresh appeal to the SEND Tribunal.
13. If the Council failed to decide whether to issue an EHCP within the statutory timescale, Ms X could raise this with the Council as a fresh complaint. If she was unhappy with the response, Ms X could bring a complaint to the Ombudsman. However, Ms X has said she intends to take legal action against the Council. If this was ongoing, it would place the matter outside our jurisdiction with no discretion to investigate.

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Final decision

14. We cannot investigate Ms X’s complaint because she has used her right of appeal to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman