Summary: We will not investigate this complaint about the Council refusing to assess Mr X’s child for an Education, Health and Care Plan. This is because it was reasonable for Mr X to appeal to the First-tier Tribunal (Special Educational Needs and Disability). Even if we were to investigate, there is no worthwhile outcome we could now achieve.

The complaint

1. The complainant, whom I shall refer to as Mr X, complained the Council wrongly refused to assess his child for an Education, Health and Care Plan (EHC Plan) on several occasions. Mr X’s child now has an EHC Plan, but Mr X says he missed out on vital support because of the Council’s previous decisions.

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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. 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)
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.
5. 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 no worthwhile outcome achievable by our investigation. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

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

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My assessment

8. We will not start an investigation into Mr X’s complaint.
9. When a council refuses to assess a child for an EHC Plan, there is a right of appeal to the SEND Tribunal. This is the mechanism set up by Parliament for parents to challenge such decisions. The SEND Tribunal can look at how the decision was reached and decide if it should be changed. We generally expect parents to use their right of appeal. I see no reason Mr X should not have appealed as it could have given him the outcome he wanted. Mr X is unhappy with how the Council reached the decision not to assess his child for an EHC Plan. But that is not something we could separate from the decision itself, which it was reasonable for Mr X to appeal. We will not therefore investigate his complaint.
10. Even if we were to put aside the above, there is no worthwhile outcome we could now achieve. We could not say the Council should have reached a different decision earlier on as that is not our role. We could not say there was any lost provision because of a flawed decision. There is now an EHC Plan in place and so consideration of the complaint by the Ombudsman would not lead to a worthwhile outcome.

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Final decision

11. We will not investigate Mr X’s complaint because it was reasonable for him to appeal and there is no worthwhile outcome achievable by an investigation.

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Investigator's decision on behalf of the Ombudsman