Summary: We will not investigate this complaint about the Council’s assessment process for Education, Health and Care plans for Ms X’s two children, and its complaint-handling. The substantive matters are not separable from the issues that Ms X can appeal to tribunal. We will not consider complaint-handling in isolation.

The complaint

1. Ms X complained the Council did not consult the correct professionals or properly involve her in the Education, Health and Care (EHC) needs assessment processes for her two children with Special Educational Needs and Disability (SEND). She complained about the adequacy of the reports obtained as part of this process.
2. Ms X also complained the Council chose to consolidate the separate complaints about her two children into one. She said this meant issues were confused and several matters were not addressed. Ms X said this impacted the assessment process and the resulting EHC plans have not addressed all her children’s needs.
3. Ms X wanted the Council to apologise and respond to the complaints about each child separately. She wanted it to make service improvements to ensure parents are involved in EHC needs assessment processes.

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The Ombudsman’s role and powers

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. 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)

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How I considered this complaint

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

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My assessment

8. A child or young person with SEND may have an EHC Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the Council can do this.
9. We cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example, delays in the process before an appeal right started or failure to deliver support named in an EHC plan. Ms X’s complaint is not about these matters.
10. The courts have confirmed where an appeal to the SEND Tribunal has been made, we cannot investigate anything which happened before an appeal right started which could be considered by the tribunal. This includes the assessment process, such as which reports and documents the council obtained.
11. The injustice Ms X claims in her complaint to us is that the EHC plans do not properly address her children’s SEND. There is a right of appeal to the Tribunal against the description of a child or young person's SEND and, the special educational provision specified. This is a matter that Ms X can appeal to tribunal, and it is reasonable for her to do so. Her complaint about the Council’s assessment process is not separable to the matters the tribunal can consider.
12. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue. We will therefore not investigate Ms X’s complaint about the Council’s complaint-handling alone.

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Final decision

13. We will not investigate Ms X’s complaint because it is not separable from the matters the SEND tribunal can consider, and it is reasonable for Ms X to present her concerns about the assessment process as part of her appeal. We will not investigate the complaint-handling in isolation.

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Investigator's decision on behalf of the Ombudsman