Summary: We cannot investigate this complaint about the decision to refuse to carry out and Education Health and Care Needs Assessment, and about the Council’s response to subsequent correspondence. The complainant has used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) and this places the complaint outside our jurisdiction.

The complaint

1. The complainant, Miss X, complains that the Council unreasonably refused to carry out and Education Health and Care Needs Assessment (EHCNA) for her son, and has failed to respond reasonably to her subsequent correspondence.

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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. 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

5. I considered information provided by the complainant.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Miss X says her son has special educational needs. She asked the Council to carry out an EHCNA. It declined to do so. Miss X indicated that she wished to appeal against the decision or go to mediation. Miss X complains that the decision not to carry out an EHCNA is wrong. She also complains that the Council has failed to respond to her correspondence on the matter within appropriate timescales.
8. The correspondence Miss X has provided shows that she has appealed against the Council’s decision to the SEND Tribunal. Before doing so, she asked to go to mediation. The Council was unable to attend mediation, for which it apologised, and Miss X was issued with a mediation certificate.
9. The Ombudsman cannot investigate Miss X’s complaint because she has used her right to appeal to the SEND Tribunal. The law says we cannot investigate the decision not to carry out an EHCNA when an appeal has been made. The courts have established that if someone has appealed to the Tribunal, we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal.
10. The period we cannot investigate starts from the date the appealable decision is made and given to the parent. If the parent goes on to appeal, the period that we cannot investigate ends when the appeal process finishes. This restriction applies to all matters since the Council told Miss X it would not carry out an EHCNA, placing them outside our jurisdiction

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Final decision

11. We cannot investigate Miss X’s complaint because she has used her right to appeal to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman