The Ombudsman's final decision
Summary: We will not investigate Ms X’s complaint about the Council’s Education, Health and Care (EHC) needs assessment process and its decision not to her issue her child with an EHC Plan. There is a right of appeal to a tribunal which it is reasonable for her to use.
The complaint
Ms X complains there were flaws in the Council’s Education Health and Care (EHC) needs assessment process for her child, Y. She says a flawed assessment has led to an incorrect decision not to issue Y with an EHC Plan.
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 courts have established that if someone has appealed (or could have appealed) to a tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of the appeal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207) The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the 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
Ms X complained about the Educational Psychology (EP) assessment completed as part of Y’s EHC needs assessment. She said the assessor did not consider relevant documents or observe Y in the classroom before completing their report. She said the report did not reflect Y’s needs and she disagreed with the Council’s decision not to issue Y with an EHC Plan.
We will not investigate this complaint. Ms X has a right of appeal to the Tribunal about the decision not to issue Y with an EHC Plan and it is reasonable for her to use this right. If Ms X considers a flawed EP assessment led to an incorrect decision, she can raise this as part of the Tribunal process. The Tribunal has wide ranging powers and can order fresh assessments as it considers necessary, as part of its proceedings.
Final decision
We will not investigate Ms X’s complaint because there is a right of appeal to the Tribunal which it is reasonable for her to use.
Investigator's decision on behalf of the Ombudsman