Summary: We cannot investigate this complaint about the Council’s assessment of Y’s special educational needs. This is because her father, Mr X, has used his right of appeal to the First-Tier Tribunal and could have asked the Tribunal to consider the issues he has raised as part of his appeal.

The complaint

1. Mr X complains the Council has refused to reimburse the cost of a clinical psychology report commissioned for his daughter’s (Y’s) Education, Health and Care (EHC) Plan. He also complains about changes to the Plan, the Council’s refusal to provide provision as part of Y’s education package and its handling of his complaint.

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The Ombudsman’s role and powers

2. 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)
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
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 Mr X and the Ombudsman’s Assessment Code.

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My assessment

Background

7. A child or young person with special educational needs may have an EHC Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the Tribunal or the council can do this. 
8. Councils may commission optional reports from professionals as part of the EHC needs assessment or annual review process where they decide it is necessary. Where they decide not to commission optional reports, and if the parent or young person disagrees with the outcome of the assessment, they can appeal.

Y’s case

9. Mr X is unhappy the Council failed to commission a clinical psychology assessment. He says this was necessary in Y’s case and complains the Council did not properly consider his request. He commissioned his own private assessment and provided the report to the Council, but it has refused to reimburse the cost.
10. Mr X is separately unhappy with the contents of Y’s EHC Plan and says it does not accurately reflect her needs or implement recommendations in professional reports. He has appealed to the Tribunal to challenge the Plan but says his complaint about its refusal to fund the assessment is separate.
11. While I appreciate Mr X’s argument I do not agree that we can look at the Council’s refusal to commission the assessment, or its refusal to reimburse Mr X for the cost, separately. This is because the Tribunal has wide ranging powers and it can order the Council to reimburse the cost of the assessment if it decides there are good reasons. It can also consider whether the Council’s decision to change the ‘primary need’ in Y’s EHC Plan was justified, if it wrongly impacted the contents of the Plan and whether the provision Mr X believes should be part of Y’s educational package should be included in Section F.
12. 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)
13. The Council’s refusal to commission or reimburse Mr X for the assessment is such a matter and it therefore falls outside our jurisdiction to investigate.
14. In any event, the Council has agreed to reconsider Mr X’s request for additional provision as part of Y’s educational package and it is unlikely we could achieve anything more.
15. 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

16. We cannot investigate this complaint. This is because Mr X has used his right of appeal to the Tribunal and the issues he raises are connected to, or could be part of, his appeal.

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Investigator's decision on behalf of the Ombudsman