Summary: We cannot investigate Mr X’s complaint about the Council’s refusal to obtain occupational therapist advice as part of its assessment of his son’s special educational needs. This is because Mr X has used his right of appeal to challenge the content of the final Education, Health and Care Plan and any complaint about the assessment process is too closely linked to the Council’s decision about what to include in the Plan. We will not separately investigate Mr X’s complaint about the Council’s warning over his conduct as the issue did not cause Mr X significant injustice.

The complaint

1. Mr X complains the Council failed to commission advice from an occupational therapist (OT) as part of his child’s Education, Health and Care (EHC) Assessment. He is also unhappy the Council gave him a warning about his behaviour but refused to deal with his complaint about the warning.
2. Mr X says he was forced to pay for a private OT report for his child and feels silenced by the Council’s warning.

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The Ombudsman’s role and powers

3. 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)
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)
6. 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

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

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My assessment

9. Mr X is clear he is not complaining about the contents of his child’s EHC Plan, which he has appealed against to the SEND Tribunal. Rather, his complaint concerns the Council’s refusal to obtain OT advice as part of the process which he believes is a requirement under the Special Educational Needs and Disability (SEND) Code of Practice.
10. However, while I appreciate the distinction the courts have confirmed that where a person has used their right of appeal to the SEND Tribunal we cannot separately consider any complaint about the assessment process including which reports and documents the council obtained to informed its decision. We cannot therefore investigate the issue further or say the Council must reimburse Mr X for the cost of the private report.
11. Mr X’s complaint about the Council’s warning is a separate issue but we will not investigate it further. This is because it did not cause Mr X significant enough injustice to warrant investigation and because it is unlikely investigation would achieve any worthwhile outcome.
12. This is because Mr X remains able to contact the Council about any new issues and his appeal against the content of the EHC Plan is now with the SEND Tribunal to consider. I understand Mr X was upset by the warning but we do not have the resources to investigate all the cases we receive and we must therefore prioritise those which are the most serious. Although I acknowledge the warning impacted Mr X personally I am not satisfied the impact is serious enough to investigate it further.
13. Mr X is also unhappy with the way the Council dealt with his complaint. But it is not a good use of public resources to look at the Council’s complaints handling if we are not going to look at the substantive issue complained about. We will not therefore investigate this issue separately.

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Final decision

14. We will not investigate this complaint further. This is because we cannot look at the Council’s refusal to obtain OT advice and the injustice caused by its warning to Mr X is not significant enough to warrant investigation.

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Investigator's decision on behalf of the Ombudsman