Summary: We will not investigate Ms X’s complaint about the Council’s failure to complete the Education, Health and Care needs assessment within required timescales, and matters related to the assessment process. There is insufficient evidence of fault by the Council to justify investigating.

The complaint

1. Ms X complains:

• the Council failed to complete the Education, Health and Care (EHC) needs assessment for her child, Y within required timescales following issue of a tribunal order;
• about its conduct and approach during the assessment process which she says was biased;
• about breaches of data protection law, and;
• about the Council’s complaint handling and its failure to communicate with her in a timely manner.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

4. 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)
5. 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.
6. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So, where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.

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How I considered this complaint

7. I considered information provided by the complainant and the Council.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. Ms X complains about delays and non-compliance with a Tribunal Order issued in May 2024. The Order instructed the Council to carry out an assessment of Y’s needs and issue its decision within 10 weeks of the date of the Order. The Council issued its decision not to issue an EHC Plan in July 2024, in line with the timescale noted on the Order. I will not investigate this part of Ms X’s complaint because there is insufficient evidence of fault by the Council to justify investigating.
10. Ms X is unhappy with the way the Council conducted the assessment process. However, any fault by the Council in its assessment is not separable from its decision not to issue an EHC Plan which Ms X has appealed to the SEND Tribunal. We cannot investigate Ms X’s complaints about the EHC needs assessment as this would overlap with the Tribunal’s consideration of the appeal.
11. I will not investigate any complaint about the Council’s communication and its handling of Ms X’s complaint when I cannot investigate the substantive matter being complained about.
12. It is reasonable to expect Mrs X to complain to the Information Commissioner’s Office (ICO) about matters related to the Council’s data handling. The ICO is better placed to consider such matters.

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Final decision

13. We will not investigate Ms X’s complaint because there is insufficient evidence of fault by the Council to justify investigating.

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Investigator's decision on behalf of the Ombudsman