The Ombudsman's final decision
Summary: We cannot investigate Mrs X’s complaint about the Education Health and Care Plan process for her son. This is because Mrs X has appealed to the First-tier Tribunal (Special Educational Needs and Disability). The case is therefore outside our jurisdiction.
The complaint
The complainant, Mrs X, complained about the Education Health and Care Plan (EHC Plan) process for her son. Mrs X is unhappy the Council has only named a type of school for September 2024. Mrs X says the Council is breaking the law.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (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
We will not start an investigation into Mrs X’s complaint. This is because Mrs X has appealed the content of her son’s EHC Plan to the SEND Tribunal. By law, this places the content of the EHC Plan outside our jurisdiction. Any alleged failings in the decision-making process cannot be separated from the matter appealed. Whether the Council has acted unlawfully or unreasonably is a matter for the Tribunal. We are also barred from looking at the Council’s conduct during the appeals process. We have no discretion to consider any part of Mrs X’s complaint.
Final decision
We cannot investigate Mrs X’s complaint because she has appealed to a tribunal.
Investigator's decision on behalf of the Ombudsman