Summary: We will not investigate this complaint about the Council’s handling of an Education, Health and Care (EHC) Plan. This is because Mrs X has used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) and it was reasonable for her to do so.

The complaint

1. Miss X complains on behalf of her daughter, Y, that the Council delayed completing her education, health and care (EHC) needs assessment because it failed to use the expert reports she had obtained to expedite the process. Miss X also complains about the Council’s complaint handling.

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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 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. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal…such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.

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How I considered this complaint

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

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My assessment

8. The council must not seek further advice if it already has advice and “the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process”.
9. Miss X obtained reports from an Educational Psychologist and Speech and Language Therapist regarding Y’s needs to speed up the assessment process. The Council was not satisfied the advice provided within the reports was sufficient for the purposes of the EHC needs assessment. It decided an independent assessment of Y’s needs should take place. There was a delay in obtaining the assessments and we have already considered this delay in a previous investigation.
10. Miss X has used her right to appeal to the SEND Tribunal. Miss X has advised the Ombudsman the SEND Tribunal has considered the Council’s decision not to use the reports she obtained. There is nothing further we can add to this.
11. Miss X has also complained about the Council’s complaint handling. We do not consider complaint handling if we cannot consider the main substance of the complaint.
12. For the reasons mentioned above, we will not be investigating Miss X’s complaint.

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Final decision

13. We will not investigate Miss X’s complaint because she has used her right to appeal to the SEND Tribunal, we have already considered the delay in issuing the final EHC Plan and we do not consider complaint handling when we are unable to investigate the substantive matter of the complaint.

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Investigator's decision on behalf of the Ombudsman