Summary: We cannot investigate this complaint about the Council’s refusal to carry out an Education, Health Care Needs Assessment for the complainant’s child and its response to her complaint about the same matter. 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, Dr X, complains the Council refused to assess her daughter’s Education, Health and Care (EHC) Needs, the Tribunal found this decision was unlawful, yet the Council did not uphold her complaint about the matter.
2. Dr X says the Council’s refusal to take accountability has caused avoidable distress, her daughter has lost a full year of vital support and she is worried about other families that may be affected.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
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 Dr X and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Dr X has appealed the Council’s decision to not assess her child’s education, health and care needs. The Tribunal considered Dr X’s appeal and said the Council had applied the incorrect legal test when making its decision. The Tribunal ordered the Council to conduct an EHC Needs assessment.
9. The Ombudsman cannot investigate Dr X’s complaint. The matter she complains of was for the Tribunal to consider and she has used her right to appeal which 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 resources to do so. That is the case here.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman