The Ombudsman's final decision
Summary: We will not investigate Mrs X’s complaint about educational psychologists’ assessments. It is reasonable to expect her to appeal to the Tribunal the injustice caused by the assessments - the Council’s decisions on her Education Health and Care Plan request for her child.
The complaint
Mrs X is unhappy with the way educational psychology assessments were conducted and used.
The Ombudsman’s role and powers
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. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (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.
I considered the Ombudsman’s Assessment Code.
My assessment
Mrs X requested an Education Health and Care Plan (EHC Plan) in August 2023 for her child, B. The Council refused to assess B. Mrs X appealed to the SEND Tribunal. In March 2024 it ordered the Council to assess B. The Council completed its assessment in June and decided not to issue an EHC Plan. Mrs X is preparing an appeal to the SEND Tribunal.
Mrs X says the Council carried out an educational psychology assessment in March 2024 on B without her consent and without her prior knowledge. She disagrees with this assessment and says the Council should not use it.
The Council in reply to Mrs X’s complaint accepted the process for the March 2024 educational psychologist assessment was not followed. It apologised.
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) The consequence of the education psychologists’ assessments are the Council’s decisions about B’s EHC Plan assessment. It is reasonable to expect Mrs X to appeal the Council’s decisions to the SEND Tribunal. This means we should not investigate her complaint about the assessments.
Final decision
We will not investigate Mrs X’s complaint because it is reasonable to expect Mrs X to appeal the injustice caused by the educational psychologists’ assessments, the Council’s decision not to issue an EHC Plan.
Investigator's decision on behalf of the Ombudsman