Summary: We cannot investigate this complaint about an Education Health and Care Needs Assessment carried out by the Council. The complainant has used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability), and this places the matter outside our jurisdiction.

The complaint

1. The complainant, Mrs X, complains that the Council carried out a flawed Education Health and Care Needs Assessment (EHCNA) and, as a result, issued an Education Health and Care (EHC) plan which failed to identify her child’s needs.

Back to top

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 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.
5. The courts have established that if someone has appealed to the Tribunal, the law says 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)

Back to top

How I considered this complaint

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

Back to top

My assessment

8. Mrs X’s daughter has special educational needs and an EHC plan. Mrs X complains that the EHCNA the Council carried out was flawed. Specifically, she complains that the Council’s educational psychologist did not properly assess her daughter and, as a result, her daughter’s needs were not identified in the EHC plan the Council subsequently issued.
9. Mrs X used her right to appeal to the Tribunal against the content of the EHC plan. She wants the Council to reimburse her for costs she has incurred in connection with the appeal, and to pay for ongoing support for her daughter.
10. The Ombudsman cannot investigate Mrs X’s complaint. We cannot express a view on whether flaws in the conduct of the EHCNA led to a flawed EHC plan. The alleged fault is not separable from the content of the EHC plan. Mrs X’s recourse was to appeal to the Tribunal, which she has done.
11. The fact that Mrs X has used her appeal right places matters relating to the EHC plan, including the evidence on which its content was based, outside the Ombudsman’s jurisdiction. There is no discretion available to us. Neither can we consider the matter of costs, because the Tribunal itself has the power to do so.

Back to top

Final decision

12. We cannot investigate Mrs X’s complaint because she has used her right to appeal to the Tribunal.

Back to top

Investigator's decision on behalf of the Ombudsman