The Ombudsman's final decision
Summary: We cannot investigate this complaint about how the Council reviewed Mr X’s child’s Education Health and Care Plan. The matters complained of are not separable from matters that have been subject to court action, and where only a court could vary the current arrangement for where the child should live. Mr X has a right to go to court it would be reasonable to use. Mr X also has or had a right of appeal to a tribunal it would be reasonable to use against the educational setting named in the child’s Plan.
The complaint
Mr X said the Council failed to properly review his child’s Education Health and Care (EHC ) Plan. He wanted the Council to return the child to her family outside the UK.
The Ombudsman’s role and powers
We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended) The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended) 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.
I considered the Ombudsman’s Assessment Code.
My assessment
The issue at the heart of the complaint is where Mr X’s child should live. He wants the child to be returned to his family outside the UK. The correspondence Mr X supplied shows his child’s residence is subject to a court order. We cannot investigate matters related to the decision of the court. Only another court could vary that decision, and it would be reasonable for Mr X as a parent to return to court to seek the outcome he wants.
Although it is a secondary issue, Mr X also has or had the right to appeal against the educational setting named in Section I of his child’s EHC Plan.
Final decision
We cannot investigate Mr X’s complaint because the matters of which he complains are not separable from matters that have ben decided by a court and an only be varied by another court. Mr X has a right to return to court it would be reasonable to use. He also has or had a right it would be reasonable to use to appeal to the SEND Tribunal against the education setting named in the EHC Plan.
Investigator's decision on behalf of the Ombudsman