Summary: We will not investigate this complaint about the Council’s refusal to carry out an Education, Health and Care Needs Assessment for Mr X’s child. Also, we will not investigate its refusal to accept Mr X’s request to engage in mediation after the legal deadline had passed. There is not enough evidence of fault by the Council, and it was reasonable for Mr X to make a late appeal to the relevant tribunal.

The complaint

1. Mr X complains the Council refused to carry out an Education, Health and Care Needs Assessment (EHCNA) for his child. He complains the Council subsequently refused his request to engage in mediation about the dispute. Mr X asked the Council to accept the request outside the standard two-month window as a reasonable adjustment due to disability-related barriers experienced by him and Mrs X.

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

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How I considered this complaint

6. I considered information provided by the complainant.
7. I considered the Ombudsman’s Assessment Code and Special Educational Needs and Disability Regulations 2014 (referred to as the SEND Regulations in this decision statement).

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My assessment

8. Mr X asked the Council to assess his child for an EHC Plan. The Council refused his request in July 2025 and advised him of his right of appeal to the SEND Tribunal.
9. In October, Mr X contacted the mediation service.
10. Under the SEND Regulations, where parents wish to pursue mediation, they must contact the mediation service within two months of the council’s relevant decision. In this case, that was within two months of the Council’s refusal to carry out the EHCNA in July. Mr X asked the Council to engage in mediation after two-month deadline as a reasonable adjustment based on his and Mrs X’s disability-related needs. The Council refused the request and provided clear reasons for its refusal. It said, given the amount of time that had passed, the information and decision made was out of date. The Council said it was open to Mr X to make a new request for an EHCNA. There is not enough evidence of fault to justify investigating.
11. In any event, in these circumstances, it is reasonable to expect Mr X to submit a late appeal to the SEND Tribunal. Only the SEND Tribunal has the power to order councils to carry out an EHCNA. We cannot consider the legality of the Council’s refusal. The SEND Tribunal will reach its own decision on whether to accept a late appeal from Mr X. Mr X should say why he thinks the Tribunal should allow an extension of the deadline. The Tribunal could then decide to allow his appeal. That is not a decision we can take and so an investigation is not appropriate. We will not investigate the complaint.

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Final decision

12. We will not investigate this complaint about the Council’s refusal to carry out an EHCNA for Mr X’s child. Also, we will not investigate its refusal to accept Mr X’s request to engage in mediation after the legal deadline had passed. There is not enough evidence of fault by the Council, and it was reasonable for Mr X to make a late appeal to the SEND Tribunal to consider the underlying matters.

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Investigator's decision on behalf of the Ombudsman