Summary: We will not investigate this complaint about the Council’s handling of Mr X’s request it assess his child for an Education, Health and Care Plan. This is because there were appeal right to the First-tier Tribunal (Special Educational Needs and Disability) and it was reasonable for Mr X to use them. Even if we were to investigate, there is no worthwhile outcome we could now achieve.

The complaint

1. The complainant, Mr X, complained about the Council’s decision not to assess his child for an EHC Plan. Mr X is unhappy with how the Council reached its decision. Mr X says the Council has now reversed its decision and has agreed to issue an EHC Plan. However, because of delay caused by the original refusal, Mr X says his child has been unable to access a suitable placement for the start of the new school year.

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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. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact 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 or continue an investigation if we decide:

• further investigation would not lead to a different outcome, or
• there is no worthwhile outcome achievable by our investigation. (Local Government Act 1974, section 24A(6), section 34(B))

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How I considered this complaint

6. I considered information provided by the complainant.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. We will not start an investigation into Mr X’s complaint.
9. When a council refuses to assess a child for an EHC Plan, there is a right of appeal to the Tribunal. This is the mechanism set up by Parliament for parents to challenge such decisions. The Tribunal can look at how the decision was reached and decide if it should be changed. We generally expect parents to use their right of appeal. It was reasonable for Mr X to have appealed as it could have given him the outcome he wanted. Mr X is unhappy with how the Council reached the decision not to assess his child for an EHC Plan. But that is not something we could separate from the decision itself which carried a right of appeal. We will not therefore investigate his complaint.
10. Even if we were to put aside the above, there is no worthwhile outcome we could now achieve. We could not say the Council should have reached a different decision earlier on as that is not our role – that is for the Tribunal. We could not therefore say there was any lost provision, or the choice of school was limited because of a flawed decision. There is now an EHC Plan in place and so consideration of the complaint by the Ombudsman would not lead to a different worthwhile outcome.

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Final decision

11. We will not investigate Mr X’s complaint. This is because the Council’s original refusal carried a right of appeal it was reasonable for Mr X to use. There is no worthwhile outcome achievable by an investigation.

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Investigator's decision on behalf of the Ombudsman