The Ombudsman's final decision
Summary: We cannot investigate Mrs X’s complaint about the Council’s refusal to assess her daughter for an Education Health and Care Plan. This is because Mrs X has used her right of appeal against the Council’s decision.
The complaint
The complainant, Mrs X, complains the Council has refused to carry out an Education Health and Care needs assessment for her daughter Y. She has appealed against the Council’s decision but is concerned about the amount of time an appeal and any assessment may take.
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 has a right of appeal, reference or review to a tribunal about the same matter. We may decide to investigate if we consider it would be unreasonable to expect the person to use this right but cannot investigate if they have already used it. (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 Mrs X and the Ombudsman’s Assessment Code.
Final decision
We cannot investigate this complaint. This is because Mrs X has lodged an appeal with the SEND Tribunal against the Council’s decision not to assess Y. The complaint therefore falls outside our jurisdiction as set out at Paragraph 3.
If Mrs X wins her case at the Tribunal and the Council fails to complete the assessment and issue any Plan within the statutory timeframe Mrs X may raise a new complaint about the delay.
Investigator's decision on behalf of the Ombudsman