Summary: We cannot investigate this complaint about the Council’s refusal to carry out an Education Health and Care Needs Assessment for the complainant’s son, and its response to her subsequent complaint. This is because the complainant has used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability).

The complaint

1. The complainant, Mrs X, complains that the Council made a flawed decision not to carry out an Education Health and Care Needs Assessment (EHCNA), and failed to respond appropriately to her subsequent complaint.

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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. 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.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Mrs X says her son has special educational needs which his current school cannot meet. She contends that he requires specialist support. She asked the Council to carry out an EHCNA and complains that it made a flawed decision to decline to do so. In Mrs X’s view, the Council ignored relevant evidence and gave weight to irrelevant factors in making this decision.
8. Mrs X has appealed to the Tribunal against the Council’s decision. She also made a formal complaint to the Council and complains that it directed her to the appeal route. She argues that this has denied her access to local resolution.
9. The Ombudsman cannot investigate Mrs X’s complaint. The matter turns on whether the decision not to carry out an EHCNA was flawed. By law, that is not something we can consider. It is a matter for the Tribunal, and the fact that Mrs X has used her right to appeal places the decision, and how it was made, outside the Ombudsman’s jurisdiction. There is no discretion available to us.
10. Where a substantive matter cannot be investigated, we will not investigate how a council has responded to a complaint about it. It is not a good use of our resources to do so. That is the case here.

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Final decision

11. We cannot investigate Mrs X’s complaint because she has used her right to appeal.

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Investigator's decision on behalf of the Ombudsman