Summary: We cannot investigate this complaint about how the Council considered a request for an Education Health and Care plan. Ms X has appealed the Council’s decision to tribunal, therefore we have no jurisdiction to investigate.

The complaint

1. Ms X complained the Council:
• Failed to consider her assessment request for an Education Health and Care (EHC) plan in the statutory timeframe.
• Did not consider the evidence she provided to support the request for the assessment.
• Provided contradictory information about the reason for the delay.
• Did not respond to her complaint at stage two of its procedures.
2. Ms X said the Council’s actions had resulted in her having to appeal to tribunal which upheld her request for an EHC needs assessment. She wants the Council to explain how it will prevent these mistakes happening in the future and provide financial compensation.

Back to top

The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. 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)
6. 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 any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6))

Back to top

How I considered this complaint

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

Back to top

My assessment

9. The Council delayed by nine days in deciding whether to complete an EHC needs assessment. It has apologised for that delay. There is not significant enough injustice to consider this complaint further, or the contradictory information it provided about the delay.
10. Ms X appealed the Council’s decision not to complete an EHC needs assessment. Therefore, we have no jurisdiction to investigate this complaint, including how the Council considered the information she provided.
11. Although the Council has not provided a stage two response to Ms X’s complaint, we will not consider this further. It is not a good use of public resources to investigate the Council’s complaint handling where the substantive matter is out of jurisdiction.

Back to top

Final decision

12. We cannot investigate Ms X’s complaint because we have no jurisdiction to investigate when the complainant has used their right of appeal.

Back to top

Investigator's decision on behalf of the Ombudsman