Summary: We will not investigate this complaint about the Council’s decision not to obtain a Speech and Language assessment as part of Mrs X’s son’s Education, Health and Care Needs Assessment. This is because it would be reasonable for Mrs X to raise the point at the First-tier Tribunal (Special Educational Needs and Disability) as part of an appeal.

The complaint

1. Mrs X complains the Council failed to agree and assess her son’s speech and language needs as part of his Education, Health and Care Needs Assessment (EHCNA).
2. The Council asked the school to refer Mrs X’s son for assessment but Mrs X would like a professional Speech and Language Therapist assessment obtained by the Council for her son’s EHCNA.
3. Mrs X also complains about the way her case officer spoke to her and wants the Council to assign a different member of staff to her son’s case.

Back to top

The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect 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 an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. 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)
7. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.

Back to top

How I considered this complaint

8. I considered information provided by Mrs X and the Council.
9. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

10. Mrs X says her son has speech and language needs which she is concerned will not be properly identified or addressed in his Education Health and Care (EHC) Plan without an assessment by a professional. But her complaint pre-supposes that any EHC Plan the Council issues will be insufficient and we cannot investigate or recommend a remedy for an injustice which has not yet happened.
11. If, once the Council has completed the EHCNA process and issued Mrs X’s son an EHC Plan, Mrs X believes the Plan fails to properly set out his needs or list provision to address them, it would be reasonable for Mrs X to appeal to the SEND Tribunal. The Tribunal can consider whether the EHC Plan accurately reflects Mrs X’s son’s needs and whether the provision listed in Section F of the Plan is sufficient to meet those needs. It also has wide powers to order reports be completed.
12. We will not investigate Mrs X’s complaint about her case officer as it would be disproportionate to do so as a standalone issue. The Council apologised in the complaint response and should either change her case officer as requested or advise why it will not.

Back to top

Final decision

13. We will not investigate Mrs X’s complaint because it could be considered at the SEND Tribunal, and it would not be proportionate to investigate her complaint about her case officer as a standalone issue.

Back to top

Investigator's decision on behalf of the Ombudsman