The Ombudsman's final decision
Summary: We cannot investigate this complaint about the Council’s decision not to assess the complainant’s child for an Education, Health and Care Plan. This is because the complaint has appealed to the First-tier Tribunal (Special Educational Needs and Disability). This places the matter outside our jurisdiction.
The complaint
The complainant, Mr X, complained the Council had refused his request for an Education, Health and Care Needs Assessment (EHCNA) for his son. Mr X says the Council made an unlawful decision.
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) 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 the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
We cannot consider Mr X’s complaint.
A council can refuse to carry out an EHCNA if it does not think the required tests have been met. This is a decision parents can appeal to the SEND Tribunal. We normally expect parents to use their appeal rights as it is the method set up by Parliament for parents to challenge such decisions. The Tribunal can decide if a council should carry out an EHCNA. This is not a decision we can take, so an appeal is normally considered reasonable.
Mr X has now exercised his right of appeal to the SEND Tribunal. When a parent uses their right of appeal, the law says we have no jurisdiction to consider the decision appealed or any closely related matters. This means we cannot investigate whether the Council was at fault in refusing to carry out an EHCNA. We have no discretion on this matter and Mr X’s complaint is not one we can consider.
Final decision
We cannot investigate Mr X’s complaint because he has used his right of appeal to the SEND Tribunal.
Investigator's decision on behalf of the Ombudsman