Summary: We cannot investigate this complaint about the Council’s failure to commission an occupational therapy assessment for her son. This is because Ms X has appealed against its decision not to issue an Education, Health and Care Plan and we cannot separate out the issues or fill any gaps in the remedy provided by the Tribunal.

The complaint

1. Ms X complains the Council failed to commission an occupational therapy assessment as part of her application for an Education, Health and Care (EHC) Plan for her son. She says the Council relied on information it failed to share with her, depriving her of the opportunity to challenge it.
2. Ms X says she commissioned her own private assessment as part of her appeal against the Council’s decision not to issue an EHC Plan and she wants the Council to reimburse the cost (£750).
3. The Council conceded Ms X’s appeal and she now complains it has failed to put in place the occupational therapy provision listed in her son’s EHC Plan. She also says it has failed to reimburse her for the cost of arranging her own private provision.

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The Ombudsman’s role and powers

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. We may decide to investigate if we consider it would be unreasonable to expect the person to use this right but cannot investigate if they have already used it. (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 Ms X and the Council.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. We cannot investigate Ms X’s complaint about the Council’s failure to provide the required occupational therapy provision listed in her son’s EHC Plan. This is because Ms X has not yet raised the matter with the Council or given it a reasonable opportunity to respond to the issue. We therefore consider this aspect of her complaint premature. If Ms X wishes to pursue the issue she should put it to the Council in the first instance. Then, once she has completed the Council’s complaints process, and if she remains unhappy, she may refer it back to us as a new complaint. We will then decide whether we can and should investigate it.
10. Ms X’s complaint about the Council’s failure to commission an occupational therapy assessment has completed the Council’s complaints process but it is not an issue we can investigate due to the exclusion set out at Paragraph 4.
11. Ms X suggests the Council’s failure to commission an assessment contributed to its decision not to issue an EHC Plan but Ms X has appealed against this decision and we cannot look at the same issue considered by the Tribunal. We will not separately look at the Council’s failure to disclose the information as part of the assessment, as Ms X was able to challenge it as part of her appeal.
12. Ms X also claims injustice from the cost of commissioning her own report but the Tribunal has powers to consider and/or award costs as part of the appeal. (The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699, Rule 10) 
13. The Tribunal could therefore have made an award of costs against the Council if it decided it had acted unreasonably, and it is not for us to fill the gap where it has declined to do so.

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Final decision

14. We cannot investigate this complaint. This is because Ms X has used her right of appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman