Summary: We will not investigate this complaint about fault in the process of an Education Health and Care Needs Assessment. This is because the complainant has the right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) against the outcome of the Assessment and it would be reasonable for her to do so.

The complaint

1. The complainant, who I will refer to as Ms X, complains that the Council failed to follow the law and statutory guidance when carrying out an Education Health and Care Needs Assessment (EHCNA) for her daughter.

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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 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)
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.

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How I considered this complaint

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

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My assessment

6. Ms X’s daughter has been the subject of an EHCNA. The outcome was that the Council declined to issue an Education Health and Care Plan (EHCP). Ms X complains that the Council failed to obtain and take account of the information required by the statutory guidance before deciding not to issue an EHCP. Specifically, she says the Council failed to consider educational psychology advice, which was not available to it when it made its decision.
7. In settlement of her complaint, Ms X wants the decision to be rescinded and the matter reconsidered with the educational psychologist’s report taken into account.
8. The Ombudsman will not investigate this complaint because Ms X has the right to appeal to the SEND Tribunal about the decision not to issue an EHCP, and it would be reasonable for her to use that right. This places the matter outside our jurisdiction.
9. Ms X says her complaint is about flaws in the conduct of the EHCNA, not its outcome. But the conduct and the outcome are not separable. Rather, one is integral to the other. If Ms X believes flaws in the EHCNA were material to the outcome, her recourse is to use her right to appeal to the SEND Tribunal. We will not intervene.

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Final decision

10. We will not investigate Ms X’s complaint because it would be reasonable for her to use her right to appeal.

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Investigator's decision on behalf of the Ombudsman