The Ombudsman's final decision
Summary: We will not investigate Mrs X’s complaint about the Council failing to seek advice and information from the Speech and Language and Occupational Therapy service as part of the Education, Health, and Care needs assessment process. This is because Mrs X can appeal to the SEND Tribunal, and it is reasonable for her to exercise her right of appeal. Therefore, the complaint is out of the Ombudsman’s jurisdiction.
The complaint
Mrs X complains the Council failed to seek advice and information from the Speech and Language and Occupational Therapy service as part the Education, Health, and Care needs assessment process. She says this means her child’s needs will not be appropriately identified and supported.
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 the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
The Council agreed to complete an Education, Health, and Care (EHC) needs assessment for Mrs X’s child. As part of this assessment, Mrs X asked the Council to seek advice and information from the Speech and Language (SALT) and Occupational Therapy (OT) service. Mrs X wants the services to complete an assessment of her child.
The Council said it consulted with the SALT and OT service and received their response. It said the Special Educational Needs and Disability Regulations 2014 do not specify that it must obtain a report of assessment. Therefore, the Council was satisfied it had fulfilled it statutory duty.
The SALT service has since agreed to assess the child and complete a report.
We cannot investigate this complaint because Mrs X has a right of appeal to the SEND Tribunal. In this case, the claimed injustice of the alleged fault (the Council’s failure to obtain a SALT/OT assessment) is that her child’s EHC plan is inadequate and does not meet their needs. This is a matter that can be appealed to the SEND Tribunal. The SEND Tribunal also has powers to order the Council to complete assessments/reports, which is the outcome Mrs X wants.
Final decision
We will not investigate Mrs X’s complaint because Mrs X can appeal to the SEND Tribunal, and it is reasonable for her to exercise her right of appeal. Therefore, the complaint is out of the Ombudsman’s jurisdiction.
Investigator's decision on behalf of the Ombudsman