The Ombudsman's final decision
Summary: We will not investigate this complaint about delays completing an Education Health and Care (EHC) needs assessment and about the school named in the final EHC plan. This is because the issue of delay has already been considered by the Ombudsman, and it is reasonable for the complainant to use their right of appeal to a tribunal about the school named in the EHC plan.
The complaint
Miss X complains that the Council delayed carrying out an Education Health and Care (EHC) needs assessment for her child and then named a school in the final EHC plan that cannot meet her child’s needs. Miss X would like the Council to name another school, pay her legal fees and pay her compensation.
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 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 the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
I will not investigate Miss X’s complaint that the Council delayed carrying out an EHC needs assessment. This has previously been considered by the Ombudsman under a different case reference. The Ombudsman recommended that the Council make a payment to Miss X to remedy the injustice caused by the delays and the Council has complied with this recommendation. We cannot accept repeat complaints about the same issues.
I will not investigate Miss X’s complaint that the Council named a school in its final EHC plan that cannot meet her child’s needs. This is because it is reasonable for Miss X to use her right of appeal against the contents of the EHC plan to the SEND Tribunal. We cannot direct changes the name of the educational placement. Only the Tribunal can do this.
The Tribunal, in certain situations, can make cost orders. If Miss X believes the Council’s conduct was unreasonable, and led to her incurring unnecessary costs, she could ask the Tribunal to order the Council to pay these costs.
Final decision
We will not investigate Miss X’s complaint because the issue of delay has been previously considered by the Ombudsman and because it is reasonable for her to use her right of appeal to the SEND Tribunal.
Investigator's decision on behalf of the Ombudsman