Summary: We will not investigate this complaint about how the Council assessed a child’s special educational needs, including the actions of an Educational Psychologist, this is because the complainant has appealed to a tribunal which places the matter outside of our jurisdiction.

The complaint

1. The complainant, who I will call Mr X, complains about how the Council assessed his daughter’s Special Educational Needs (SEN). He complains about the decision not to issue an EHC plan and about the conduct of an Educational Psychologist who assessed his daughter.

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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. (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. The Courts have said that we cannot investigate a complaint about any action by a council, concerning a matter which is itself out of our jurisdiction. (R (on the application of M) v Commissioner for Local Administration [2006] EHWCC 2847 (Admin))
6. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply (Local Government Act 1974, section 26(5))

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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. The Council carried out an assessment of Mr X’s daughters SEN but decided not to issue an Education Health and Care (EHC) plan. Mr X appealed this decision to the SEND Tribunal.
10. Mr X complains about the Council’s decision not to issue a an EHC plan and the conduct of a Educational Psychologist who assessed his daughter.
11. I cannot investigate Mr X’s complaint that the Council refused to issue an EHC plan for his daughter, this is because he has appealed this decision to the SEND tribunal. The tribunal appeal also places the assessment and conduct of the Educational Psychologist outside of our jurisdiction. This is because this assessment informed the Council’s decision not to proceed with an EHC plan. The courts have made it clear that we cannot investigate the actions of a council when it concerns a matter that falls outside of our jurisdiction.
12. Mr X has also complained to the Ombudsman that the Council failed to arrange alternative provision for his daughter. However, I will not investigate this element of his complaint because it did not form part of his complaint to the Council, and therefore it has not had an opportunity to respond via its complaints process. It is unlikely we would investigate this matter though until the tribunal process has concluded.

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Final decision

13. We will not investigate Mr X’s complaint because he has used his right of appeal to the SEND Tribunal

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Investigator's decision on behalf of the Ombudsman