Summary: We cannot investigate part of Mrs X’s complaint about the Council’s decisions when making her child’s Education, Health and Care Plan because she used her right to appeal to a tribunal, and the law says we cannot investigate. We will not investigate the remainder because the tests in our Assessment Code are not met.

The complaint

1. Mrs X complained the Council:
1. refused her request for an Education, Health and Care (EHC) needs assessment of her child;
2. refused to make an EHC Plan for her child and delayed sending her its decision;
3. failed to obtain relevant reports for the EHC Plan including Speech and Language Therapy (SaLT), Occupational Therapy (OT) and other reports; and
4. delayed making an EHC Plan for her child following a tribunal appeal.
2. Mrs X said the matter caused her distress and frustration.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 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)
6. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
7. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect 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 an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

8. I considered information provided by the complainant and the Council.
9. I considered the Ombudsman’s Assessment Code.

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My assessment

Refused her request for an Education, Health and Care (EHC) needs assessment of her child

10. The Council received a request for an EHC needs assessment of Y in early October 2024. Its decision about whether to conduct an assessment should have been made within 6 weeks. The Council decided not to conduct an assessment but made the decision three days beyond the statutory timescale.
11. We will not investigate this complaint. The injustice caused by a three-day delay in the process is not significant enough to warrant an investigation by the Ombudsman.

Refused to make an EHC Plan for her child and delayed sending her its decision

12. Mrs X appealed the decision not to conduct an EHC needs assessment to the SEND Tribunal. The Tribunal, by a consent order, instructed the Council to conduct an EHC needs assessment in late January 2025.
13. To comply with the SEND regulations, the Council had to make its decision about whether to make an EHC Plan or not within 10 weeks of the Tribunal’s order. The Council decided not to make an EHC Plan, and it made the decision before the deadline. Therefore, there is insufficient evidence of fault to warrant an investigation.
14. Mrs X appealed the decision not to make an EHC Plan to the SEND Tribunal. Because this matter was taken to the Tribunal, the law says we cannot investigate the decision not to make an EHC Plan.

Failed to obtain relevant reports for the EHC Plan

15. We cannot investigate Mrs X’s complaint that the Council failed to obtain relevant reports as part of the EHC needs assessment. This is because Mrs X used her right to appeal the content of the EHC Plan to the SEND Tribunal. Because the Tribunal will now consider the content of the EHC Plan, the law says we cannot investigate the process by which it was made.
16. Even if we could investigate, we would not, because the consequence of the failure to obtain the reports is that the EHC Plan is wrong, and the Tribunal is considering that issue.

Delayed making an EHC Plan for her child following a Tribunal appeal

17. Mrs X later appealed the decision not to make an EHC Plan to the SEND Tribunal. Mrs X said the Council conceded and agreed to make an EHC Plan, but there were delays in this process.
18. We will not investigate this matter. The Council’s complaint process ended in early April 2025. Mrs X has not yet complained about the delay in making the EHC Plan and issues surrounding this Tribunal appeal to the Council.
19. The law says we cannot normally investigate complaints unless the organisation knows about the matter and has had the opportunity to respond. I have seen no good reasons the Ombudsman should consider this matter before the Council has had the opportunity to do so. If Mrs X is unhappy with the Council’s conduct it is open to her to raise a new complaint for it to consider in the first instance.

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Final decision

20. We cannot investigate part of Mrs X’s complaint because she used her right to appeal to a tribunal. We will not investigate the remainder because the tests in our Assessment Code are not met.

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Investigator's decision on behalf of the Ombudsman