The Ombudsman's final decision
Summary: We will not investigate Miss X’s complaint about the Council’s refusal to assess her child for an Education Health and Care Plan. It is reasonable to expect her to have appealed to the Tribunal.
The complaint
The complainant, whom I shall call Miss X, says the Council should have agreed to assess her child, Y, for an Education Health and Care Plan (EHC Plan) in December 2021.
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 Miss X which included the Council’s reply to her complaint.
I considered the Ombudsman’s Assessment Code.
My assessment
Miss X has a four year old child, Y. She asked the Council to assess Y for an EHC plan. A child with special educational needs may have an EHC plan. This sets out the child’s needs and what arrangements should be made to meet them.
The Council told her in early December 2021 that extra SEND funding had been agreed for Y. At the end of December 2021, it notified her that it had decided not to assess Y for an EHC plan.
There is a right of appeal to the SEND Tribunal against a decision not to assess for an EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess has been made and sent to the parent.
Miss X says the Council reconsidered the position in May 2022. It agreed to assess Y. By the end of June, it had agreed to issue an EHC plan. It issued the final EHC plan for Y at the end of July. Miss X says this should have happened earlier as she believes it should have agreed to assess at the end of December.
Miss X had a right of appeal to SEND of the Council’s decision not to assess Y in December 2021. This is the process for redress Parliament granted for a decision not to assess. It is reasonable to expect her to have used that right, so we will not investigate her complaint.
Final decision
We will not investigate Miss X’s complaint because it is reasonable to expect her to have appealed to the Tribunal, SEND.
Investigator's decision on behalf of the Ombudsman