Summary: We cannot investigate Mr X’s complaint about the Council’s decision not to conduct an Education, Health and Care Needs Assessment regarding his child, Y. This is because Mr X appealed the decision to the SEND Tribunal.

The complaint

1. Mr X complained about the Council’s decision to refuse to assess his child, Y, for an Education, Health and Care Plan.
2. Mr X says the matter caused him frustration and uncertainty about Y’s education.

Back to top

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. 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.
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)
6. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)

Back to top

How I considered this complaint

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

Back to top

My assessment

9. Mr X asked the Council to conduct an EHC Needs Assessment of his child, Y. The Council decided not to conduct an EHC Needs Assessment of Y.
10. Mr X complained to the Council. He said it had failed to apply the correct legal tests when it refused to assess Y. Mr X told the Council he submitted an appeal to the SEND Tribunal about its decision.
11. The Council responded to Mr X and explained it acknowledged he disagreed with its decision but said it had made the decision in line with the law.

Analysis

12. We cannot investigate this complaint. Mr X said the Council failed to apply the correct legal tests when it refused to assess Y. However, Mr X appealed the decision to the SEND Tribunal. The law says that we cannot investigate any matter which is part of, or connected to, a Tribunal appeal. Therefore, we cannot investigate how the Council decided not to assess Y.

Back to top

Final decision

13. We cannot investigate Mr X’s complaint because he has used his right of appeal to the SEND Tribunal and the law says we cannot investigate.

Back to top

Investigator's decision on behalf of the Ombudsman