Summary: We cannot investigate Miss Y’s complaint about the advice sought by the Council during her child’s Education, Health and Care (EHC) needs assessment. Miss Y has appealed to a tribunal about the content of the EHC Plan, so we have no power to investigate her complaint.

The complaint

1. Miss Y complains the Council refused her request for occupational therapy and speech and language assessments during her child’s Education, Health and Needs Assessment.

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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 SEND Tribunal in this decision statement.

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How I considered this complaint

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

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My assessment

7. Miss Y’s complaint centres around the Council failing to arrange assessments for her child by a speech and language therapist or occupation therapist. She says this means the final EHC Plan is not fit for purpose because it does not include advice from these healthcare professionals. Miss Y says she has privately paid for an occupational therapy assessment, but this is not reflected in the Plan.
8. The special educational provision needed by a child or young person is specified in Section F of the EHC Plan. Miss Y made an appeal to the Tribunal in relation to the content of her child’s EHC Plan.
9. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207).
10. It is Miss Y’s contention that the failure to carry out the assessments resulted in a flawed EHC plan. This matter relates to the content of the EHC plan, which was a matter for the Tribunal. As such, the Ombudsman cannot consider Miss Y’s complaint. The injustice caused by the non-existent reports is that the EHC Plan does not meet the child’s needs, which is the subject of the appeal. Equally, the Tribunal has wide powers itself to order reports be completed. Even if the request for reports did not form part of the appeal submitted by Miss Y, because the Tribunal powers exist, and the Tribunal could be ‘seized’ to do so, we cannot investigate this matter.

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Final decision

11. We cannot investigate Miss Y’s complaint because she has used her right to appeal to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman