Summary: We will not investigate Mr X’s complaint about the Council’s refusal to carry out an Education, Health and Care needs assessment for his child. This is because Mr X used his right to appeal to the First-tier Tribunal (Special Educational Needs and Disability).

The complaint

1. Mr X complains the Council refused to carry out an Education, Health and Care (EHC) needs assessment for his child. He says the Council did not properly apply the legal test when deciding whether to assess his child.

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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 Mr X and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Mr X asked the Council to carry out an EHC needs assessment for his child. The Council considered his request and decided not to carry out an assessment.
9. Parents who are unhappy with a council’s decision not to carry out an EHC needs assessment have a right of appeal to the Tribunal. It is the mechanism set up by Parliament for parents to challenge such decisions.
10. Mr X has used his right of appeal to the Tribunal. This means we cannot investigate the complaint.
11. Mr X also says the Council shared someone else’s personal information with him. We will not investigate this matter. This is because it is reasonable to expect him to take the matter to the Information Commissioner’s Office (ICO). The ICO was set up by Parliament with the purpose of regulating how public authorities comply with GDPR. The ICO is the appropriate body to review complaints about data matters, has the expertise to decide such matters, and can make necessary recommendations. 
12. 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

13. We will not investigate Mr X’s complaint because Mr X used his 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