The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s conduct of the assessment process in the period before a Tribunal hearing due to determine Miss X’s child’s special educational needs provision. The type and quality of assessments carried out is not separable from the Council’s judgements about the child’s special educational needs, in respect of which Miss X has used her right of appeal to a Tribunal.
The complaint
Miss X said she had been passed from pillar to post since she made a decision to seek a specialist placement for her child after his educational provision failed. She said she had had to instruct a solicitor to get the assessments done her child needed and to get the Education Health and care (EHC) Plan re-written in time for the Tribunal hearing in January. She said the Tribunal date had been pushed back three times and she had also had to give up her job to allow her child to receive home tuition
The Ombudsman’s role and powers
The law says we cannot normally investigate a complaint when someone can appeal 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 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.
The courts have held that where someone has appealed to the SEND Tribunal, we have no authority to consider what educational provision should be made for the child concerned. (Local Government Act 1974, section 26(6)(a), R v the Commissioner for Local Administration ex parte PH, 1999); R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
The documents Miss X and the Council supplied stated the Council issued an EHC Plan for the child and Miss X appealed to the SEND Tribunal in May 2022. The nature and quality of assessments carried out and opinions formed by the Council about the child’s needs are matters for the SEND Tribunal.
The legal judgement referred to in paragraph 4 above means we cannot comment on the educational provision made by the Council from the date it issued the EHC Plan.
Final decision
We will not investigate Miss X’s complaint because the matters complained of are not separable from matters in respect of which she has used her right of appeal to the SEND Tribunal.
Investigator's decision on behalf of the Ombudsman