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

The complaint

1. Miss X complains the Council refused to carry out an Education, Health and Care (EHC) Needs Assessment for her child. She says the Council made procedural errors which caused delays. She also says the Council failed to provide the correct appeal rights despite agreeing to do so.

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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. 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)
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 asked the Council to assess her child for an EHC plan. The Council considered her request and decided not to carry out an assessment.
9. Parents who are unhappy with a council’s decision not to carry out an Education, Health and Care 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. Miss X has used her right of appeal to the Tribunal and the Council has agreed to carry out an EHC Needs Assessment for her child. We cannot investigate her complaint, including the procedural errors, delays and issues with her appeal rights, because these are connected to her appeal.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman