Summary: We cannot investigate Ms X’s complaint about the advice sought by the Council during her child’s Education Health and Care (EHC) needs assessment. Ms X has appealed to the SEND Tribunal about the content of the EHC Plan, so we have no power to do so.

The complaint

1. Ms X complains the Council refused to obtain advice from a specialist occupational therapist as she requested, during its Education, Health and Care (EHC) needs assessment for her child, Y. She says this meant the EHC Plan did not meet her child’s 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. 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. 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). 
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.

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How I considered this complaint

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

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My assessment

8. We cannot investigate this complaint. Ms X has appealed to the SEND Tribunal about the content of the EHC Plan. The Council’s decision not to obtain specialist occupational therapy advice as part of the EHC needs assessment has led to Ms X’s dissatisfaction with the content of the EHC Plan, which she has appealed.
9. Ms X can raise the matter of an occupational therapy assessment with the Tribunal as part of the appeal. The Tribunal has wide ranging case management powers and can order the Council to obtain an OT report, if it considers this is required. Therefore, we cannot investigate this complaint.

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Final decision

10. We cannot investigate Ms X’s complaint because she has appealed to the SEND Tribunal and so we have no power to do so.

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Investigator's decision on behalf of the Ombudsman