Summary: We cannot investigate Ms X’s complaint about an Education Health and Care Plan assessment process as the Tribunal is considering the case.

The complaint

1. The complainant, whom I shall call Ms X, complains about the way the Council compiled an Education Health and Care Plan (EHC Plan).

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The Ombudsman’s role and powers

2. 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)
3. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the SEND Tribunal in this decision statement.
4. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect 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 an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

5. I considered information provided by Ms X which included the Council’s reply to her complaint.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Ms X’s child, B, has special educational needs. Ms X says the Council assessed B’s needs and produced an EHC Plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
8. Ms X says the EHC Plan does not meet B’s needs. She says she is appealing to the Tribunal to get the EHC Plan changed. Ms X says her complaint is the Council excluded support from the EHC Plan proposed by an Occupational Therapist. She says she is complaining about the decision making process.

Analysis

9. The Council’s decision making process affects the content of the EHC Plan. Any fault in the process potentially caused the EHC Plan to not meet B’s needs. This means the assessment process is tied to the EHC Plan content, and not separable from it. The remedy for any faults in the process, causing an EHC Plan to not meet a child’s needs, is an appeal to the Tribunal. We cannot therefore investigate the process used as the Tribunal is considering the EHC Plan content.

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Final decision

10. We will not investigate Ms X’s complaint because the Tribunal is considering B’s EHC Plan.

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Investigator's decision on behalf of the Ombudsman