Summary: We will not investigate Miss X’s complaint about the Council’s failure to provide adequate support to her daughter, who has spent a considerable amount of time out of school. This is because the issue relates to the Council’s decision to refuse Miss X’s daughter’s application for an education health and care plan and Miss X has appealed against that decision. Miss X may ask for a referral from the Council’s occupational health team for support and if it refuses she may raise a new complaint about this decision.

The complaint

1. The complainant, Miss X, complains the Council has left her daughter without education or social support. She feels her daughter should attend a specialist school but the Council has refused her request for an education health and care plan (EHCP). She also believes her daughter would benefit form adaptations around the house, sensory lighting and alterations to keep her safe.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect 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 an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
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.

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How I considered this complaint

6. I considered information provided by Miss X and the Ombudsman’s Assessment Code.

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My assessment

7. Miss X asked the Council to carry out an education, health and care needs assessment in 2020, which the Council did, but it declined to issue her an EHCP. Miss X appealed against the Council’s decision but the Tribunal dismissed her appeal. This was because it felt Miss X’s daughter did not have the relevant level of need for an EHCP and could manage in a mainstream school without specialist support.
8. We cannot investigate any complaint about the Council’s decision on this point, including that her daughter’s absence from school is the result of the decision to refuse an EHCP and provide her with a placement at a specialist school. This is because Miss X has used her right of appeal to the Tribunal.
9. The Council has explained that Miss X may make a new request for a needs assessment with a view to agreeing an EHCP but Miss X says she has already done this. If Miss X disagrees with any decision not to carry out an assessment, or to issue her daughter an EHCP, it would be reasonable for her to appeal.
10. The Council has also invited Miss X to make a referral to its Occupational Health team regarding further support for her daughter and if she has not done so already she may wish to contact them about this now. If Miss X disagrees with any decision not to provide the support she believes her daughter needs she may ask how she can challenge it and she may ultimately raise a new complaint about the Council’s decision.

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Final decision

11. We will not investigate this complaint. This is because the substantive issue concerns Miss X’s daughter’s eligibility for an EHCP and Miss X has used her right of appeal against the Council’s decision on this point.

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Investigator's decision on behalf of the Ombudsman