Summary: We will not investigate Mrs X’s complaint about the Council’s handling of her child’s education, health and care plan because an investigation would not lead to a different outcome. It was reasonable for Mrs X to use her right of appeal if she was unhappy with the content of the final plan the Council issued.

The complaint

1. Mrs X complains the Council has unlawfully refused a face-to-face Educational Psychology (EP) assessment of her son before the annual review of his education, health and care (EHC) Plan. Mrs X says it has resulted in an outdated EHC Plan and it means his school cannot deliver the appropriate support. Mrs X also complains the Council provided her with conflicting information regarding EP assessments.

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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 investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact 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 or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

4. 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)
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 the complainant and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. The Council maintains an EHC Plan for Mrs X’s child. Before an annual review of the EHC Plan, Mrs X requested a face-to-face consultation with an EP and the Council refused this request and offered a consultation only. The Council has adopted a system where its EP service does not offer face-to-face assessments for children with existing EHC Plans. Mrs X is of the view this is unlawful.
9. The SEND Code of Practice does not specify EP assessments must be undertaken prior to an annual review and it does not state the assessments should be face to face. Mrs X says without a face-to-face EP assessment, her son’s EHC Plan is outdated and does not accurately reflect his needs. Parents who want to challenge the content of an EHC Plan have a right of appeal to the SEND Tribunal. It is the mechanism set up by Parliament for parents to challenge such decisions. We expect parents to use this right unless it is not reasonable for them to do so. The Tribunal can order councils to change plans and undertake assessments, we cannot. It was therefore reasonable for Mrs X to use her right of appeal if she was unhappy with the EHC Plan.
10. Mrs X also complains the Council provided her with misleading information regarding the assessments. The Council has apologised for any confusion that has arisen around their processes and has explained the process in its complaint response.
11. The Ombudsman is aware of the Council’s action plan to address the shortage of EPs. It is also aware the Council has secured funding to recruit further EPs over the next two years. We are satisfied with the actions the Council is taking to address the problem. There is nothing we can add to the Council’s investigation and response to Mrs X’s complaint.

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Final decision

12. We will not investigate Mrs X’s complaint because our involvement would not achieve a different outcome and it was reasonable for Mrs X to appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman