Summary: We will not investigate this complaint about poor communication during the Council’s Education, Health and Care plan needs assessment process. This is because Mrs X has a right of appeal to the SEND tribunal about the decision made and the Council has already apologised for any confusion caused by its communication.

The complaint

1. Mrs X complains the Council did not clearly explain why it refused an Education Health and Care (EHC) needs assessment for her child and has refused to consider her complaint at stage two of its complaints procedure. She says this has caused delay in the EHC assessment process. She wants the Council to accept the letter was unclear and to apologise for its poor complaints handling.

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The Ombudsman’s role and powers

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 Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. 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)
5. 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))

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How I considered this complaint

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

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My assessment

8. Mrs X requested the Council assess her child for an Education, Health and Care (EHC) plan.
9. The Council decided not to assess her child. It sent her a letter setting out its reasons and advising her of her right of appeal to the SEND Tribunal.
10. Mrs X was unhappy with the decision and complained to the Council. She said she had since found out the Council’s reason for not agreeing to assess for an EHC plan was different from the reason set out in the Council’s letter.
11. The Council considered her complaint and apologised if its communication had caused any confusion. It said it had advised her of the right of appeal to the SEND tribunal, should she want to appeal its decision to not complete an EHC plan assessment. It said it would not consider her complaint further as the correct route to appeal the decision was through the SEND Tribunal.
12. Although Mrs X says she is complaining about poor communication, Mrs X’s main dissatisfaction is with the decision not to assess. Mrs X can appeal this decision to the SEND Tribunal and it is reasonable for her to do so, so we cannot investigate this.
13. Even if the letter did cause some confusion, the Council has apologised for this, which is appropriate to remedy any injustice caused. Further investigation could achieve nothing more.

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Final decision

14. We will not investigate Mrs X’s complaint because Mrs X has a right of appeal to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman