Summary: We will not investigate Mrs X’s complaint about the Council's decision not to carry out an Education Health and Care Needs Assessment for her child. This is because it would be reasonable for Mrs X to appeal to the SEND Tribunal.

The complaint

1. The complainant, Mrs X, complains the Council refused to carry out an Educational Health and Care Needs Assessment (EHCNA) for her child, despite them meeting the threshold for an assessment. She says the decision is unlawful and she wants the Council to reverse it and carry out an assessment.

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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. 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

5. I considered information provided by Mrs X and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Where a child has special educational needs they, or someone acting on their behalf, may ask the Council to carry out an EHCNA.
8. Decisions about whether to carry out an EHCNA carry a right of appeal to the SEND Tribunal.
9. Mrs X says the Council’s decision not to carry out an EHCNA for her child is unlawful but whether it is correct is a matter for the SEND Tribunal. If therefore Mrs X wishes to challenge the decision it would be reasonable for her to appeal. We cannot separately look at the way the Council made its decision as we cannot decide if the decision was correct.

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Final decision

10. We will not investigate this complaint. This is because it would be reasonable for Mrs X to appeal against the Council’s decision not to carry out an EHCNA.

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Investigator's decision on behalf of the Ombudsman