Summary: We will not investigate this complaint about an educational psychology assessment carried out during an Education Health and Care Assessment. This is because the complaint relates to a matter about which it would have been reasonable for the complainant to use her right to appeal

The complaint

1. The complainant, who I will refer to as Ms X, complains that the Council relied on a flawed educational psychology assessment when carrying out her daughter’s Education Health and Care Needs Assessment (EHCNA).

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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 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.
4. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (Local Government Act 1974, section 26(6)(a), as amended)
5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)

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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 says the educational psychology report carried out in the course of her daughter’s EHCNA was inaccurate and failed to capture all available data. She argues that the quality of the assessment was material to the fact that the Council decided to refuse to issue an Education Health and Care Plan (EHC Plan).
9. Ms X says that, although the Council has now agreed to issue an EHC Plan, the matter has delayed her daughter’s special educational provision by at least six months.
10. The Ombudsman will not investigate Ms X’s complaint. This is because it concerns a matter which could have been considered by the SEND Tribunal, or is closely related to such a matter. The assessment about which Ms X complains formed part of the EHCNA and was therefore material to its outcome. This is a matter about which it would have been reasonable for Ms X to appeal, and therefore falls outside the Ombudsman’s jurisdiction, whether or not the appeal right was used. The fact that the Council subsequently conceded is not relevant.

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Final decision

11. We will not investigate Ms X’s complaint because it concerns a matter about which it would have been reasonable for her to use her right to appeal.

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Investigator's decision on behalf of the Ombudsman