Summary: We cannot investigate Mrs X’s complaint about how the Council considered a request for an Education Health and Care needs assessment. This is because Mrs X has used her right of appeal to the SEND Tribunal.

The complaint

1. Mrs X complains about the process the Council used when deciding not to carry out an Education Health and Care (EHC) needs assessment. Mrs X says incorrect information was presented to the panel that made the decision resulting in an incorrect decision not to carry out an assessment. Mrs X wants the Council to make a new decision and consider the correct information.

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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 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)
4. 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.

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How I considered this complaint

5. I considered information provided by the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. I cannot investigate Mrs X’s complaint because she has used her right of appeal to the SEND Tribunal. Whilst Mrs X says her complaint is about the process rather than the decision, the claimed injustice of the alleged fault is that the incorrect decision was made not to assess. This is the matter that has been appealed and therefore the process is not separable from decision which has been appealed.

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Final decision

8. We will not investigate Mrs X’s complaint because she has used her right of appeal to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman