Summary: We cannot investigate most of Mrs X’s complaint because she has appealed the Council’s decision not to conduct an Education, Health and Care needs assessment of her child to the SEND Tribunal. We will not investigate the remainder of the complaint because an investigation is unlikely to achieve a different outcome.

The complaint

1. Mrs X complained about delays in the Education, Health and Care (EHC) process regarding her child, Y. Mrs X also said the Council applied the wrong legal tests when it decided not to conduct an EHC needs assessment.
2. Mrs X said these matters caused her frustration and uncertainty.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact 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 or continue an investigation if we decide:

• further investigation would not lead to a different outcome, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

6. 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

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

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My assessment

9. We cannot investigate Mrs X’s complaint about the Council’s decision to refuse to conduct an EHC needs assessment of her child or the basis upon which the Council made its decision. This is because Mrs X has appealed the decision to the SEND Tribunal and the law says we cannot investigate.
10. We will not investigate Mrs X’s complaint about delay in the EHC process. The Council sent the decision notice two weeks late. In its complaint response, it apologised for the delay. An investigation by the Ombudsman is unlikely to achieve any additional outcome, and therefore we will not investigate this complaint.

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Final decision

11. We cannot investigate most of Mrs X’s complaint because she has appealed the Council’s decision to a tribunal. We will not investigate the remainder of the complaint because an investigation is unlikely to achieve a different outcome.

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Investigator's decision on behalf of the Ombudsman