The Ombudsman's final decision
Summary: We cannot investigate this complaint about an education health and care needs assessment. This is because the complainant appealed to the tribunal which places the matter outside our jurisdiction.
The complaint
The complainant, whom I shall refer to as Mrs X, complained about the way the Council carried out an education health and care needs assessment for her son. Mrs X says the Council failed to include important information in the assessment.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
We cannot investigate a complaint if someone has appealed to a tribunal. (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.
The Courts have said that we cannot investigate a complaint about any action by a council, concerning a matter which is itself out of our jurisdiction. (R (on the application of M) v Commissioner for Local Administration [2006] EHWCC 2847 (Admin))
How I considered this complaint
I considered information provided by the complainant and the Ombudsman’s Assessment Code.
My assessment
Mrs X’s son has special educational needs. Mrs X is unhappy with how the Council carried out an education health and care needs assessment. Mrs X says a social worker visited her home but failed to produce a report which is required as part of the assessment process. The Council decided not to issue Mrs X’s son with an Education Health and Care Plan. Mrs X appealed the outcome of the assessment to the SEND tribunal.
The Ombudsman cannot investigate this complaint because Mrs X has appealed to the SEND Tribunal. By law, this places all matters which relate to the decision not to issue an EHCP outside our jurisdiction. The alleged failings in the assessment process are not separable from the matter appealed to the Tribunal. The complaint is therefore outside our jurisdiction with no discretion to investigate.
Final decision
We cannot investigate Mrs X’s complaint because she has appealed to the tribunal. The complaint is therefore outside our jurisdiction.
Investigator's decision on behalf of the Ombudsman