The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s decision not to carry out an Education Health and Care Needs Assessment. This is because it is reasonable for Mrs X to appeal to the SEND Tribunal. We have no powers to consider a complaint about the school Mrs X’s daughter attends.
The complaint
Mrs X complained about the Council’s decision not to carry out an Education Health and Care Needs Assessment for her daughter. Mrs X also has concerns about the support her daughter is receiving in school.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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.
We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Mrs X asked the Council to carry out an Education Health and Care Needs Assessment for her daughter. This is the first stage for parents who think their child needs an Education Health and Care Plan. The Council has refused Mrs X’s request. The Council has explained to Mrs X she can appeal its decision to the SEND Tribunal.
We will not start an investigation into Mrs X’s complaint.
As explained in paragraph 3, we will not normally investigate a complaint where someone can appeal to a court or tribunal about the same matter. We have discretion to set aside this rule where we decide there are good reasons. We will not do that here because: It is reasonable to expect Mrs X to appeal to the SEND Tribunal; and there are no good reasons why appealing to the Tribunal is not suitable.
An appeal to the Tribunal can give Mrs X the outcome she wants. The Ombudsman cannot as we have no powers to say a child should be issued with an EHCP.
We also have no powers to consider complaints about what happens in schools. If Mrs X has concerns about her daughter’s school, she will need to raise these with the school.
Final decision
We will not investigate Mrs X’s complaint. This is because it is reasonable for Mrs X to appeal to the SEND Tribunal. We cannot consider complaints about schools.
Investigator's decision on behalf of the Ombudsman