Summary: We cannot investigate Mrs X’s complaint about the Council’s refusal to carry out an Education, Health and Care Needs Assessment for her child. This is because Mrs X has used her right of appeal to the Tribunal about the matter.

The complaint

1. Mrs X complains about the Council’s refusal to carry out an Education, Health and Care Needs Assessment (EHCNA) for her child, Z. She says, in the Council’s refusal letter, it said her child “may have a need”. Mrs X says this shows the Council failed to recognise Z’s disability and it did not sufficiently consider the evidence before making its decision. Mrs X says that if a child has a disability then the Council should at least agree to carry out an EHCNA. Mrs X says the Council has discriminated against her child by failing to recognise Z’s disability and denying Z access to support.

Back to top

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 SEND Tribunal in this decision statement.

Back to top

How I considered this complaint

5. I considered information provided by the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

7. We cannot investigate Mrs X’s complaint about the Council’s refusal to carry out an EHCNA for her child. This is because she has appealed to the SEND Tribunal about this decision. For the same reason, we cannot look at the wording in the Council’s refusal letter or how it considered the evidence provided. Mrs X has raised these issues as part of her appeal. The wording in the letter explains the reasons why the Council decided to refuse to carry out the EHCNA. These matters overlap with the role of the SEND Tribunal to decide whether to allow her appeal. The Ombudsman cannot instruct the Council to carry out an EHCNA. Only the SEND Tribunal has the power to decide whether the Council should indeed carry out the EHCNA.

Back to top

Final decision

8. We cannot investigate Mrs X’s complaint about the Council’s refusal to carry out an Education, Health and Care Needs Assessment for her child. This is because Mrs X has used her right of appeal to the SEND Tribunal about the matter.

Back to top

Investigator's decision on behalf of the Ombudsman