Summary: We will not investigate Mrs X’s complaint about her child’s Education, Health and Care Needs Assessment. This is because it was reasonable for Mrs X to use her right of appeal.

The complaint

1. Mrs X complained there were flaws in the Council’s Education Health and Care Needs Assessment (EHCNA) for her child (Y). Mrs X says the flawed assessment led to the Council deciding not to issue Y with an Education, Health and Care Plan (EHC Plan). Mrs X says this has left Y without essential support.

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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 courts have established that if someone has appealed (or could have appealed) to a tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of the appeal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
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.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Mrs X complained about the Educational Psychology (EP) assessment completed as part of Y’s EHCNA. Mrs X says the EP failed to properly assess Y. Mrs X says the EP did not observe Y in a classroom or meet them face-to-face. Mrs X says the assessment was carried out “virtually” with the camera switched off. Mrs X contends the flawed assessment led to the decision not to issue an EHC Plan.
9. We will not investigate this complaint.
10. Mrs X had a right of appeal to the Tribunal about the decision not to issue Y with an EHC Plan. If Mrs X considers a flawed EP assessment led to an incorrect decision, she could have raised this as part of the Tribunal process. The Tribunal has wide ranging powers and can order fresh assessments as it considers necessary. It was therefore reasonable for Mrs X to appeal and so we will not investigate.

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Final decision

11. We will not investigate Mrs X’s complaint because it was reasonable for her to appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman