Summary: We will not investigate Miss X’s complaint about the Council’s refusal to issue an Education, Health and Care Plan. This is because Miss X used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability).

The complaint

1. Miss X complains the Council refused to issue an Education, Health and Care (EHC) plan for her child. She says there were flaws in the process.

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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. 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)

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How I considered this complaint

6. I considered information provided by Miss X and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Miss X says the Council did not ask her child’s current school setting for advice. She also says the Educational Psychology (EP) assessment was not carried out properly as part of her child’s EHC Needs Assessment. Miss X says the EP did not observe her child in a classroom and completed the assessment online. She says an assessment carried out in school would provide a more accurate understanding of her child’s needs.
9. Parents who are unhappy that a council has decided not to issue an EHC plan have a right to appeal to the Tribunal. It is the mechanism set up by Parliament for parents to challenge such decisions.
10. Miss X has used her right of appeal to the Tribunal. This means we cannot investigate the complaint. If Miss X considers a flawed EP assessment or advice not being sought from her child’s current school setting led to an incorrect decision, she could raise this as part of the Tribunal process. The Tribunal has wide-ranging powers and can order fresh assessments as it considers necessary.

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Final decision

11. We will not investigate Miss X’s complaint because Miss X used her right to appeal to the First-Tier Tribunal (Special Educational Needs and Disability).

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Investigator's decision on behalf of the Ombudsman