Summary: We will not investigate Miss X’s complaint about the Council’s Education, Health and Care needs assessment and its decision not to issue her child with an Education, Health and Care Plan. It is reasonable for Miss X to appeal to Tribunal.

The complaint

1. Miss X complained the Council’s Education, Health and Care (EHC) needs assessment for her child, Y, was flawed and led to an incorrect decision not to issue them with an EHC Plan.

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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 courts have established that if someone has a right of appeal to a 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)
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the Tribunal in this decision statement.

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How I considered this complaint

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

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My assessment

8. Following completion of an EHC needs assessment, if a Council decides an EHC Plan is not necessary it must notify the child's parents or the young person of its decision and of their right to appeal this decision to the Tribunal.
9. The Council carried out an EHC needs assessment for Y and presented the findings to its panel. The panel decided that Y did not need an EHC Plan. The Council then told Miss X its decision.
10. Miss X complained to the Council, pointing out errors in the assessment and asked that it reconsider the decision not to issue an EHC Plan for Y.
11. The Council signposted Miss X to the Tribunal as it would not reconsider its decision but considered some parts of her complaint through its two-stage complaints procedure.
12. We will not investigate this complaint about the Council’s decision not to issue an EHC Plan. Miss X has the right to appeal to the Tribunal, and it is reasonable to expect her to use this.
13. We will also not investigate Miss X’s complaint about the Council’s actions during the EHC needs assessment. Miss X’s dissatisfaction with the assessment process is part of the Council’s decision not to issue the EHC Plan. The Tribunal can consider this as part of an appeal so we cannot investigate.

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Final decision

14. We will not investigate Miss X’s complaint because it is reasonable to expect her to appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman