Summary: We will not investigate Mrs X’s complaint about how the Council carried out an Education Health and Care needs assessment for her child. This is because Mrs X has used her right of appeal to a tribunal and because we could not add to the investigation carried out by the Council into matters that are separable to that appeal.

The complaint

1. Mrs X complains about how the Council dealt with her child Z’s Education Health and Care (EHC) needs assessment. Mrs X complains that the Council:
1. Initially refused to carry out an assessment, then refused to accept a new application causing delay to the process.
2. Gave misleading information about the deadline for completing the EHC needs assessment.
3. Issued an inadequate EHC plan which listed a school that could not meet Z’s needs.
4. Carried out an inadequate Educational Psychologist (EP) assessment and refused to carry out therapeutic assessments meaning Mrs X had to pay for her own privately.

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The Ombudsman’s role and powers

2. 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:

• there is not enough evidence of fault to justify investigating, or
• we could not add to any previous investigation by the organisation.

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

3. 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)
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 Tribunal in this decision statement.

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How I considered this complaint

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

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My assessment

7. I cannot investigate Mrs X’s complaint that the Council refused to carry out an EHC needs assessment for Z because Mrs X used her right of appeal to the SEND Tribunal about this decision. It is unlikely we would find the Council at fault for not accepting a new application so soon after deciding not to assess, and whilst an appeal to the SEND Tribunal was ongoing.
8. The Council conceded Mrs X’s appeal and agreed to carry out an EHC needs assessment. The Council acknowledged that it gave Mrs X incorrect information about the timelines for completing its assessment. I will not investigate this element of Mrs X’s complaint because the Council apologised for this error and the final EHC plan was issued on time. Further investigation would therefore not add to the one carried out by the Council.
9. I cannot investigate the contents of the final EHC plan, including the school named for Z. This is because Mrs X has used her right of appeal against this to the SEND Tribunal.
10. I cannot investigate Mrs X’s complaint about the reports obtained during the assessment process. The injustice caused by any poor, or non-existent reports, is that the EHC Plan does not meet the child’s needs, which is the subject of the appeal. Also, the SEND Tribunal has wide powers itself to order reports be completed.

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Investigator's decision on behalf of the Ombudsman