The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council refusing to assess Mr X’s child for an Education Health and Care Plan. This is not separable from matters appealed to the Special Educational Needs and Disability Tribunal.
The complaint
Mr X said the Council delayed meeting his son’s special educational needs (SEN) by refusing to assess him for an Education Health and Care (EHC ) Plan. He said this forced him to appeal to the Special Educational Needs and Disability Tribunal.
The Ombudsman’s role and powers
The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended) The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
When a council refuses to assess a child’s possible SEN, there is a right of appeal to the SEND Tribunal. We cannot say whether a council should have agreed to assess as that is the SEND Tribunal’s role. And we cannot regard the time taken waiting for an appeal as separable from the appeal itself.
Final decision
We will not investigate Mr X’s complaint because it is not separable from the matters appealed to the SEND Tribunal.
Investigator's decision on behalf of the Ombudsman