Summary: We cannot investigate this complaint about the assessment of the complainant’s son’s special educational needs and the provision made to meet those needs. The complainant has used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) and this places the key matters outside our jurisdiction.

The complaint

1. The complainant, who I will refer to as Ms X, complains that the Council was at fault in the process of assessing and meeting her son’s special educational needs and issuing his Education Health and Care Plan (EHCP).

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. 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)
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 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

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

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My assessment

8. Ms X’s son has special educational needs and an EHCP. Ms X complains that the Council initially declined her request for an Education Health and Care Needs Assessment (EHCNA). When it decided to do carry out an EHCNA, the process was flawed. As a result, her son’s needs were unmet for an extended period, which has negatively impacted his education and welfare. Ms X says she has also suffered unnecessary financial loss, for which she wants to be reimbursed.
9. Ms X applied for an EHCNA in February 2022. In March 2022 the Council declined the request. Ms X believes this decision was wrong. The Council subsequently agreed to carry out an EHCNA. It issued the final EHCP in July 2022.
10. Ms X complains that the EHCNA was flawed. She says the decision to name the mainstream school where her son was on roll, without consulting the school, was unreasonable. Her son was unable to attend the school, which could not meet his needs. She further complains that the Council had failed to include key provision identified during the EHCNA in the final EHCP.
11. Ms X appealed to the SEND Tribunal. She says the Tribunal process concluded in April 2023 when the Council issued an amended EHCP naming the specialist school of her choice. She sent her son to the specialist school from November 2022, initially at her own expense. The Council agreed to meet the costs from the end of January 2023, by which time she had incurred significant costs.
12. The Ombudsman cannot investigate Ms X’s complaint because she has used her right to appeal to the SEND Tribunal. This places the key matters outside our jurisdiction.
13. The Council’s initial refusal to carry out an EHCNA was a decision which carried appeal rights. Where such rights exist, the Ombudsman normally expects them to be used, and we will not intervene. Ms X did use her right to appeal to the SEND Tribunal about the content of the EHCP issued in July 2022. By law, this placed the matters subject to appeal outside our jurisdiction. That is the case whether or not an appeal proceeds to a hearing.
14. The courts have held that this restriction applies, not just to the issues subject to appeal, but also to matters which are inextricably linked to them. This means the alleged flaws in the EHCNA, the content of the EHCP, the ability of Ms X’s son’s school to meet his needs and the consequences of Ms X’s decision to place him in the specialist school are not subject to investigation by the Ombudsman. There is no discretion available to us.

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Final decision

15. We cannot investigate Ms X’s complaint. Her appeal to the SEND Tribunal places the key matters outside our jurisdiction by law.

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Investigator's decision on behalf of the Ombudsman