The Ombudsman's final decision
Summary: We will not investigate Miss X’s complaint about the Council’s decisions not to assess her child for an Education, Health and Care Plan. Miss X either had appeal rights or has used them. This places the matter outside our jurisdiction.
The complaint
The complainant, Miss X, complained the Council refused her requests it assess her child for an Education, Health and Care Plan (EHC Plan). Miss X says the Council’s decisions were unlawful.
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 and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
We will not investigate Miss X’s complaint.
Parents who want to challenge a council’s decision not to assess their child for an EHC Plan have a right of appeal to the SEND Tribunal. It is the mechanism set up by Parliament for parents to challenge such decisions.
In this case it was either reasonable for Miss X to appeal the Council’s decisions or she has used her right of appeal. When a right of appeal has been used, we have no jurisdiction to consider the complaint from the point the appeal rights were available until a decision was reached. The decisions not to assess and how they were reached cannot be separated. We will not therefore investigate Miss X’s complaint.
Final decision
We will not investigate Miss X’s complaint. It was either reasonable for Miss X to appeal to a tribunal or she has used her appeal rights which places the matter outside our jurisdiction.
Investigator's decision on behalf of the Ombudsman