Summary: We will not investigate this complaint about the Education, Health and Care Plan process. Mr X’s appeal to the Tribunal places most of the complaint outside our jurisdiction. The Council’s delay in reaching a decision did not cause an injustice significant enough to warrant an investigation.

The complaint

1. The complainant, Mr X, complained about the Council’s handling of his request it assess his child (Y) for an Education, Health and Care Plan (EHC Plan). Mr X says the Council failed to properly consider key evidence, did not explain its decision, and did not meet the timescales in the SEN Code of Practice.

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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.
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 any injustice is not significant enough to justify our involvement. (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 and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. We will not start an investigation into Mr X’s complaint.
9. The issue at the heart of this case is the Council’s decision not to assess Mr X’s child for an EHC Plan. Mr X disagrees with that decision and how the Council reached it.
10. Parents who are unhappy with a council’s decision not to assess their child have a right of appeal to the Tribunal. Mr X has used this right. The law is clear that when a parent has appealed, we have no powers to consider the matter put to the Tribunal – in this case the refusal to assess. We also have no powers to consider any closely related matters such as the Council’s decision-making. We cannot therefore consider this part of Mr X’s complaint.
11. We could consider the delay part of Mr X’s complaint because it concerns matters which occurred before Mr X had a right of appeal. But the delay by the Council in taking a decision was less than a month. That did not cause an injustice significant enough to warrant us investigating.

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Final decision

12. We will not investigate Mr X’s complaint. His appeal to the Tribunal places much of the complaint outside our jurisdiction and the injustice caused by the Council’s delay is not significant enough to warrant our involvement.

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Investigator's decision on behalf of the Ombudsman