The Ombudsman's final decision
Summary: We cannot investigate Mrs X’s complaint that the Council’s Education, Health and Care needs assessment of her child, Y, was inadequate. This is because Mrs X used her right of appeal to the SEND Tribunal and the law says we cannot investigate.
The complaint
Mrs X complained the Council’s Education, Health, and Care (EHC) needs assessment of her child, Y, was inadequate.
Mrs X says the matter caused her distress and frustration, resulted in financial loss, and caused Y to miss out on special educational provision they should have received.
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 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 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 courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
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 July 2022 Mrs X asked the Council to complete an EHC needs assessment of her child, Y. The Council agreed to assess Y. During the assessment, Mrs X wanted the Council to obtain both Speech and Language Therapy (SaLT) and Occupational Therapy (OT) assessments. The Council sent a final EHC Plan for Y to Mrs X in November 2022. The Council did not obtain SaLT or OT reports during the EHC process.
In December 2022, Mrs X used her right of appeal about the content of Y’s Plan to the SEND Tribunal. Mrs X said the content of the Plan was inadequate and did not reflect Y’s needs.
After the final EHC Plan was made, Mrs X obtained private SaLT and OT reports.
In January 2024 the SEND Tribunal ordered the Council to amend Y’s EHC Plan.
Mrs X then complained to the Council. She said the Council had failed to seek appropriate advice during the EHC needs assessment of Y. She said this resulted in Y’s needs not being met and impacted Y’s mental health. Mrs X said she had to commission private SaLT and OT reports and asked the Council to pay the cost of the reports.
The Council responded and explained because Mrs X had used her right of appeal to the SEND Tribunal about the content of the Plan it would not consider the complaint further. It also told Mrs X it would not reimburse the cost of the private reports she obtained.
Analysis We cannot investigate Mrs X’s complaint. This is because she has used her right of appeal to the SEND Tribuanal about the content of Y’s Plan, and the law says we cannot investigate matters that have been appealed to a tribunal, or which a tribunal can decide under its own powers. This includes the adequacy of the EHC needs assessment and the content of Y’s EHC Plan.
Mrs X wants the Council to reimburse the cost of the private SaLT and OT reports she obtained. However, because the SEND Tribunal has wide ranging powers to obtain reports and information it deems necessary, including SaLT and OT reports, we cannot investigate this complaint as explained at point five of this decision.
In addition, Mrs X said because Y’s original EHC Plan did not reflect their needs, Y did not receive the provision they required, and they struggled as a result. However, because Mrs X’s claimed injustice (that Y had unmet needs and therefore struggled) is a consequence of the matter Mrs X appealed to the SEND Tribunal (the content of the EHC Plan), we cannot investigate this complaint.
Final decision
We cannot investigate Mrs X’s complaint because she has already appealed to the SEND Tribunal about the same matter, and the law says we cannot investigate.
Investigator's decision on behalf of the Ombudsman