Summary: We will not investigate Mrs X’s complaint about her child, Y’s Education, Health and Care needs assessment process. Mrs X had a right of appeal to a tribunal if she disagreed with the content of the plan, which it was reasonable for her to use. We could not require the Council to conduct a fresh educational psychologist assessment and so cannot achieve what she wants.

The complaint

1. Mrs X complains about her child, Y’s, Education Health and Care (EHC) needs assessment process. She says the Council failed to identify their health conditions and include suitable support in the EHC Plan. She wants a fresh educational psychologist assessment and the Council to provide the support required to meet Y’s needs.

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The Ombudsman’s role and powers

2. 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)
3. The courts have established that if someone has appealed or could have 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. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
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.
5. 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 we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

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

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My assessment

8. The Council issued a final EHC Plan for Y in August 2024. We cannot investigate any dissatisfaction with this Plan. If Mrs X disagreed with the content, she had a right of appeal to the Tribunal, which it was reasonable for her to use.
9. We also cannot investigate Mrs X’s dissatisfaction with the educational psychologist assessment conducted as part of the EHC needs assessment process. This is because it is too closely connected to the content of the final plan, which has a right of appeal. If Mrs X is unhappy with the plan’s content and considers a fresh educational psychologist assessment is needed, she can appeal to the Tribunal and raise this as part of the appeal.
10. The Council reviewed Y’s plan in December 2024 and decided to maintain it. This decision also had a right of appeal to the Tribunal and so we cannot investigate.
11. We could also not require the Council to complete a fresh educational psychologist assessment. If Mrs X wishes to request this, it is open to her to request an early review of Y’s EHC plan. The Council can then consider her request as part the review process.

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Final decision

12. We will not investigate Mrs X’s complaint because she has a right of appeal to a tribunal if she is unhappy with the content of Y’s EHC Plan and we cannot achieve what she wants.

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Investigator's decision on behalf of the Ombudsman