Isle of Wight Council (22 012 312)
Category : Education > Special educational needs
Decision : Closed after initial enquiries
Decision date : 23 Jan 2023
The Ombudsman's final decision:
Summary: We will not investigate this complaint about what provision the Council included in a child’s Education Health and Care plan. This is because the matter carries a right of appeal to a tribunal and it is reasonable to expect complainant to have used that right.
The complaint
- The complainant, who I will call Mrs X, complains that the Council refused to include a behaviour assessment in Section F of her child’s Education Health and Care (EHC) plan. Mrs X decided to pay for the assessment herself and would like to be reimbursed.
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 can appeal 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 appeal. (Local Government Act 1974, section 26(6)(a), as amended)
- 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.
How I considered this complaint
- I considered information provided by the complainant and the Council.
- I considered the Ombudsman’s Assessment Code.
My assessment
- In January 2022, the Council carried out a review of Mrs X’s child’s Special Educational Needs (SEN). Mrs X complained to the Council that it had not included a behavioural assessment her child’s EHC plan, as part of her their SEN provision. The Council said it did not have sufficient evidence that the assessment was needed. The Council subsequently issued a final EHC plan, which did not include provision of the assessment.
- I will not investigate the Council’s decision not to include the provision of a behavioural assessment in Mrs X’s child’s EHC plan. This is because the decision carried a right of appeal to the SEND Tribunal and it is reasonable to expect Mrs X to have used that right.
Final decision
We will not investigate Mrs X’s complaint because the Council’s decision carried a right of appeal to the SEND tribunal and it is reasonable to have expected Mrs X to have used that appeal right.
Investigator's decision on behalf of the Ombudsman