The Ombudsman's final decision
Summary: We will not investigate this complaint about the content of an Education Health and Care Plan. This is because it is reasonable for Ms X to appeal to the SEND Tribunal.
The complaint
Ms X complained about the content of her son’s Education Health and Care Plan (EHCP). Ms X is unhappy with how the Council prepared the EHCP and wants it changing.
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.
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 Ombudsman’s Assessment Code.
My assessment
Ms X’s son has an EHCP. She is unhappy with how the EHCP was prepared and its eventual content. She wants the EHCP changing. Ms X has the right to appeal the content of the EHCP to the SEND Tribunal.
As explained in paragraph 3, we will not normally investigate a complaint where someone can appeal to a court or tribunal about the same matter. We have discretion to set aside this rule where we decide there are good reasons. We will not do that here because: It is reasonable to expect Ms X to appeal to the SEND Tribunal; and there are no good reasons why appealing to the Tribunal is not suitable.
An appeal to the Tribunal can give Ms X the outcome she wants. The Ombudsman cannot as we have no powers to say what an EHCP should contain. We will not therefore investigate.
Final decision
We will not investigate Ms X’s complaint because it is reasonable for her to appeal to the Tribunal.
Investigator's decision on behalf of the Ombudsman