Summary: We will not investigate this complaint about the Council’s decision not to carry out an assessment of a child’s special educational needs. This is because the complainant has used her right of appeal to a tribunal which places the matter outside of our jurisdiction.

The complaint

1. The complainant, who I will call Miss X, complains about the Council’s decision not to carry out an Education Health and Care (EHC) assessment of her son’s Special Educational Needs (SEN). Miss X says the Council’s decision means her son went without appropriate support impacting his education and impacting Miss X’s health.

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The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6))
3. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (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. 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)

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How I considered this complaint

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

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My assessment

8. Miss X applied for an EHC assessment for her son, but the Council refused. Miss X successfully appealed the Council’s decision to the SEND Tribunal, and in September 2022, the Tribunal ordered the Council to carry out an assessment. Miss X subsequently withdrew from the EHC process, and the Council ended its involvement.
9. I cannot investigate Miss X’s complaint about the Council’s decision not to carry out an EHC assessment. This is because Miss X used her right of appeal to the SEND Tribunal which places this matter outside of the Ombudsman’s jurisdiction.
10. I will not investigate the Council’s actions after the SEND Tribunal issued its order. This is because Miss X has since withdrawn from the assessment process. Therefore, further investigation could not achiever anything meaningful.
11. I will not investigate the Council’s actions going back to 2018, this is because these matters are late and I see no good reason why they could not have been raised with the Council and then the Ombudsman sooner.

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Final decision

12. We will not investigate Miss X’s complaint because she used her right of appeal to a tribunal.

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Investigator's decision on behalf of the Ombudsman