Summary: We will not investigate Mrs X’s complaint about the advice the Council secured during the Education, Health and Care Plan process. This is because it was reasonable for Mrs X to appeal to the First-tier Tribunal (Special Educational Needs and Disability).

The complaint

1. The complainant, whom I shall refer to as Mrs X, complained the Council refused her requests it seek advice while assessing her child for an Education, Health and Care Plan (EHC Plan). Mrs X wanted the Council to obtain reports from an Occupational Therapist (OT) and Speech and Language Therapist (SALT). Mrs X says she eventually commissioned private reports which the Council incorporated into her child’s revised 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 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. We will not start an investigation into Mrs X’s complaint.
8. In this case, the Council has explained why it did not agree to Mrs X’s request. The consequence of the Council’s decision was the content of the final EHC Plan. Parents who are unhappy with the contents of an EHC Plan have a right of appeal to the Tribunal. It is the mechanism set up by Parliament for parents to challenge such decisions. We expect parents to use their right of appeal unless it is unreasonable for them to do so. The Tribunal could have ordered the Council to obtain extra reports and to change the EHC Plan. This is the outcome Mrs X wanted. It was therefore reasonable for Mrs X to appeal and so we will not investigate.
9. Mrs X says the Council has now used the reports she privately commissioned in amending her child’s EHC Plan. That does not mean the Council was wrong to refuse to seek OT and SALT advice. It also does not change our decision it was reasonable for Mrs X to appeal.

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Final decision

10. We will not investigate Mrs X’s complaint because it was reasonable for her to use her right of appeal.

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Investigator's decision on behalf of the Ombudsman