Summary: We will not investigate this complaint about the process of an Education Health and Care Needs Assessment, and about the Council’s response to the subsequent complaint. This is because the subject of the complaint is not separable from matters which were, or could have been, subject to appeal to the First-tier Tribunal (Special Educational Needs and Disability).

The complaint

1. The complainant, who I will refer to as Miss X, complains that the Council was at fault in the process of her daughter’s Education Health and Care Needs Assessment (EHCNA), and that it unreasonably declined to uphold aspects of her subsequent complaint.

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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 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)
4. 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)
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. Miss X asked the Council to carry out an EHCNA for her daughter, with a view to obtaining an Education Health and Care Plan (EHC Plan). The Council initially declined to issue an EHC Plan. Mediation was arranged, but the Council conceded the matter. An EHC Plan was subsequently issued and Miss X has used her right to appeal to the SEND Tribunal.
9. Miss X says the EHCNA process has been characterised by fault on the Council’s part. She made a complaint to the Council which was upheld in part. Miss X’s complaint to the Ombudsman concerns three aspects of the complaint which the Council did not uphold.
10. The Ombudsman will not investigate Miss X’s complaint. This is because the three matters about which she complained to the Council would not themselves fall to be investigated by the Ombudsman.
11. Miss X complains that relevant information was not submitted to the panel which made the decision not to issue an EHC Plan. She further complains that information she submitted was not added to the case file before mediation. Finally, she complains that the draft EHC Plan the Council issued did not include an education psychology report she had commissioned.
12. The first two matters will not be investigated because they are bound up with the initial decision to refuse to issue an EHC Plan. The Ombudsman will not comment on the merits of this decision because it carried the right to appeal to the SEND Tribunal. The fact that the Council subsequently conceded does not mean we can look at this part of the process.
13. The alleged omission of the report from the draft EHC Plan is bound up with the process of producing the final EHC Plan. Miss X used her right to appeal against the content of the EHC Plan. This places the matter outside our jurisdiction, whether or not the appeal proceeds to a hearing. There is no discretion available to us here.

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Final decision

14. We will not investigate Miss X’s complaint because the subject of the complaint is not separable from matters which were, or could have been, subject to appeal to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman