The Ombudsman's final decision
Summary: We will not investigate Ms X’s complaint that the Council did not refer her daughter to a Sensory Integration Occupational Therapist as part of its assessment of her special educational needs. This is because the injustice Ms X claims stems from the Council’s decisions on her daughter’s Education Health and Care Plan and if Ms X disagreed with the contents of the Plan it would have been reasonable for her to appeal.
The complaint
The complainant, Ms X, complains the Council failed to carry out a review of her daughter’s needs by a Sensory Integration Occupational Therapist (SIOT) as part of her assessment for an Education, Health and Care (EHC) Plan. She says that as a result the Council cannot properly understand her needs or provide adequate support to help her at school. She says her daughter has not attended school since November 2023 in large part because of her sensory issues and that they need an SIOT assessment to help get her back into school.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully.
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) 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 Ms X and the Ombudsman’s Assessment Code.
My assessment
While I appreciate Ms X’s complaint focuses on the Council’s failure to carry out an SIOT assessment, the injustice she claims stems from the content of the EHC Plan and this carried a right of appeal to the SEND Tribunal.
If Ms X believes the Council has failed to properly understand her daughter’s needs and to put in place sufficient support through the EHC Plan it would be reasonable for her to appeal.
We also cannot investigate any complaint about the consequence of the Council’s decisions on Ms X’s daughter’s EHC Plan. We cannot therefore look separately at the child’s absence from school as Ms X argues this is the result of inadequate support. If however Ms X made the Council aware at the time that her daughter could not attend school, and if she believes it failed to properly consider whether it had a duty to provide her with alternative provision while she was not in school, Ms X may wish to raise a new complaint with the Council. Once Ms X’s new complaint has completed the Council’s complaints procedure, and if she remains unhappy, she may refer the matter to us to consider further.
Ms X should however bear in mind that we cannot investigate any complaint where the injustice claimed is a consequence of the Council’s decision about whether to carry out an EHC needs assessment or the contents of an EHC Plan.
Final decision
We will not investigate this complaint. This is because the injustice Ms X describes stems from the content of the EHC Plan and if Ms X disagreed with this it would have been reasonable for her to appeal.
Investigator's decision on behalf of the Ombudsman