The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s decision not to provide an Education, Health and Care plan. This is because Mrs X had a right of appeal to the SEND tribunal that she has either used or could reasonably have used.
The complaint
Mrs X complained about the Council’s decision not to provide an Education, Health and Care plan (EHCP), and its later decision not to carry out an assessment for her son, Y. Mrs X says this has caused delay in getting the support needed for Y.
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 about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), 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
In December 2020 Mrs X requested an EHC needs assessment for her son, Y. The Council considered the request in early 2021 and based on information gathered, decided to not provide an EHC plan.
In May 2022 Y’s school requested an EHC needs assessment. The Council decided not to assess as no further information of regression was provided. Mrs X used her right of appeal and says Y was issued an EHC plan in March 2023.
I will not investigate Mrs X’s complaint about the Councils decision not to provide an ECH plan in 2021. This is because Mrs X had a right to appeal the decision and it is reasonable to expect her to have used this. I will not investigate Mrs X’s complaint about the Council’s decision not to assess Y in 2022 because she has appealed to the SEND tribunal about the matter.
Final decision
We will not investigate Mrs X’s complaint because she had a right of appeal to the SEND tribunal that she has either used or could reasonably have used.
Investigator's decision on behalf of the Ombudsman