Summary: We will not investigate Mrs X’s complaint about how the Council handled an application for an Education Health and Care needs assessment for her child. This is because it is reasonable for Mrs X to use her right of appeal to a tribunal and because an investigation would not achieve a different outcome.

The complaint

1. Mrs X complains about how the Council has dealt with an application for an Education Health and Care (EHC) needs assessment for her child.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
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 – SEND) 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. The Council decided not to issue an EHC Plan for Mrs X’s child. During mediation the Council agreed to return the application back to the decision-making panel but again the issuing of a plan was refused.
8. I will not investigate the Council’s decisions not to issue an EHC Plan. This is because Mrs X has the right of appeal to the SEND Tribunal and it is reasonable for her to use that right. Only the SEND Tribunal can order the Council to issue an EHC Plan. I will not investigate any information the Council did or did not consider when reaching its conclusion because this is not separable from the decision itself.
9. I will not investigate Mrs X’s complaint that the Council delayed informing her of the panel’s decision because doing so would not lead to a different outcome. In responding to Mrs X’s complaint, the Council apologised to Mrs X for the delay. This is an appropriate response.

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Final decision

10. We will not investigate Mrs X’s complaint because it is reasonable for Mrs X to use her right of appeal to a tribunal and because investigation would not achieve a different outcome.

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Investigator's decision on behalf of the Ombudsman