The Ombudsman's final decision
Summary: We cannot investigate this complaint about alleged inadequacies during a EHCP needs assessment carried out by the Council. This is because the complainant appealed the Council’s decision to not issue an EHCP for his son to the SEND Tribunal. We have no jurisdiction to investigate complaint where a complainant has exercised a right of appeal. The decision to refuse an EHCP cannot be separated from the needs assessment in this case.
The complaint
The complainant (Mr Q) complains on behalf of his son (Child X) who has special educational needs (SEN). The Council recently carried out an assessment of Child X’s needs to determine if it should maintain an Education and Health Care Plan (EHCP) to support him in school. The Council refused to issue an EHCP and Mr Q complains the assessment was inadequate and that the Council failed to adhere to its legal obligations governing the assessment process.
In summary, Mr Q says the alleged fault has adversely affected Child X’s education and wellbeing. Mr Q appealed the Council’s decision to the SEND Tribunal which ordered the Council to issue Child X an EHCP. Mr Q explains the Council’s initial refusal has therefore delayed specialist provision being available. As a desired outcome, Mr Q wants the Council to obtain appropriate medical reports to inform education provision for Child X in his EHCP. He also wants the Council to pay compensation for the injustice caused.
The Ombudsman’s role and powers
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). In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal… such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.
The law says we cannot normally investigate a complaint when someone has a right of appeal 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).
How I considered this complaint
I considered information provided by the complainant and the Council. I also considered the Ombudsman’s Assessment Code.
My assessment
When the Council refused to issue an EHCP for Child X, Mr Q appealed the decision to the SEND Tribunal. I recognise that Mr Q understands we have no jurisdiction to investigate the Council’s refusal on this basis and for the reasons I outline at paragraph four (above). Mr Q instead wishes us to investigate and recommend a remedy in respect of the alleged inadequacies during the Council’s needs of assessment. However, this assessment is inextricably linked to the Council’s decision which Mr Q appealed.
Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).
In summary, the Court of Appeal determined the Ombudsman cannot look at either the appealed decision or the consequences (injustice) of that decision. This extends to the injustice Mr Q refers to with respect to alleged problems during Child X’s needs assessment. The restriction at paragraph five (above) applies.
Importantly, the SEND Tribunal has ordered the Council to issue an EHCP for Child X. I recognise Mr Q is unhappy with how the Council conducted the initial needs assessment. I note his concerns that may result in an inaccurate and misinformed EHCP once this has been issued. However, disagreements about the contents of an EHCP once issued carries a further right of appeal to the SEND Tribunal. However, given Mr Q can reasonably appeal to the SEND Tribunal, we would not investigate such a matter. The restriction I outline at paragraph five (above) would apply.
Final decision
We cannot investigate this complaint because Mr Q appealed the Council’s refusal to issue an EHCP to the SEND Tribunal. We have no jurisdiction to investigate this decision, nor can investigate the consequences of such decisions once an appeal right has been exercises.
Investigator's decision on behalf of the Ombudsman