Summary: We will not investigate this complaint about the process of assessing the complainant’s daughter’s education, health and care needs. This is because the complainant had the right to appeal about the outcome to the First-tier Tribunal (Special Educational Needs and Disability) and it would have been reasonable for her to do so.

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, made an unreasonable decision not to issue an Education Health and Care (EHC) plan for her daughter, and subsequently issued an EHC plan which did not meet her needs.

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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. 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)
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. Mrs X’s daughter has special educational needs and was the subject of an EHCNA. Mrs X complains that the EHCNA was flawed, and this led to Council to make an incorrect decision not to issue an EHC plan
8. The correspondence Mrs X has provided shows that, since she made her complaint, the Council reviewed its decision and agreed to issue an EHC plan. Mrs X says it has done so, but failures on the Council’s part have led to the issuing of an EHC plan which does not meet her daughter’s needs.
9. The Ombudsman will not investigate Mrs X’s complaint. The decision not to issue an EHC plan, and the content of an EHC plan, are both matters which carry the right to appeal to the Tribunal. Where appeal rights exist, the Ombudsman normally expects them to be used. The matters about which Mrs X complains are not separable from the appealable decisions, and it would have been reasonable for Mrs X to use the recourse available to her. That being the case, the Ombudsman will not intervene.

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Final decision

10. We will not investigate Mrs X’s complaint because it would have been reasonable for her to use her right to appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman