Summary: We cannot investigate this complaint that the Council has failed to ensure that the complainant’s son has had access to appropriate educational provision and unlawfully declined to carry out an Education Health and Care Needs Assessment for him. The complaint concerns matters which were the responsibility of a school, or about which Miss X used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability).

The complaint

1. The complainant, Miss X, complains that the Council has failed to ensure that her son has had access to appropriate educational provision and unlawfully declined to carry out an Education Health and Care Needs Assessment (EHCNA) for him.

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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. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
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)
5. 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.
6. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 

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How I considered this complaint

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

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My assessment

9. Miss X’s son has special educational needs and an Education Health and Care (EHC) plan. She complains that the Council has failed to act to address her son’s needs, causing detriment to his education and mental health.
10. Miss X asked the Council to carry out an EHCNA in 2024. She says her son’s school has not met his needs and that he fulfilled the criteria for an EHCNA. The Council declined her request. Miss X complains that the Council’s refusal was unlawful.
11. Miss X used her right to appeal to the Tribunal against the refusal to carry out an EHCNA. The evidence shows that the Council subsequently carried out an EHCNA and issued an EHC plan.
12. Miss X says the school and Council have failed to ensure the provision set out in the EHC plan has been made. This point did not form part of the formal complaint to which the Council responded in August 2024, and we cannot therefore consider it as part of this complaint. If Miss X wishes to pursue it, she must complain to the Council in the first instance.
13. The Ombudsman cannot investigate Miss X’s complaint. By law, we can take no view on the delivery of education for her son in the period before the EHC plan was issued. This was a matter for the school and does not fall to be considered by the Ombudsman.
14. Neither can we express a view on whether the Council’s initial decision not to carry out an EHCNA was flawed. Miss X’s recourse was to appeal to the Tribunal, and she did so. This places the matter outside our jurisdiction. The courts have held that we have no power to investigate, even when the matter does not progress to a hearing. There is no discretion available to us and we cannot intervene.

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Final decision

15. We cannot investigate Miss X’s complaint because it concerns matters which were the responsibility of a school, or about which Miss X used her right to appeal.

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Investigator's decision on behalf of the Ombudsman