The Ombudsman's final decision
Summary: We will not investigate Miss X’s complaint about the Council failing to request a specific Occupational Therapy assessment as part of the Education, Health and Care Plan process. This is because it was reasonable for Miss X to appeal to the First-tier Tribunal (Special Educational Needs and Disability).
The complaint
The complainant, Miss X, complained the Council failed to request a specific Occupational Therapy assessment as part of the Education, Health and Care Plan (EHC Plan) process. Miss X says she had to pay for a private assessment to ensure her child was properly assessed. Miss X wants the Council to reimburse her costs.
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 and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
We will not start an investigation into Miss X’s complaint.
Parents who are unhappy with decisions taken during the EHC Plan process have a right of appeal to the SEND Tribunal. It is the mechanism set up by Parliament for parents to challenge such decisions. The injustice to Miss X from the alleged fault would be the Council refusing to issue an EHC Plan, or a plan which does not meet her child’s needs. These are matters the Tribunal can consider.
If Miss X was unhappy with the Council’s eventual decision regarding her child’s EHC Plan it was therefore reasonable for her to appeal. The Tribunal could have decided if further assessments were needed. This is not a decision the Ombudsman can take. An appeal could have given Miss X the outcome she wanted. It would have avoided Miss X having to privately fund the assessment. We will not therefore investigate.
Final decision
We will not investigate Miss X’s complaint because it was reasonable for her to use her right of appeal.
Investigator's decision on behalf of the Ombudsman