The Ombudsman's final decision
Summary: We will not investigate this complaint about the Education Health and Care Plan process for the complainant’s daughter. This is because the content of the plan was appealable to a tribunal. The case is therefore outside our jurisdiction.
The complaint
The complainant, Mrs X, complained the Council wrongly named a mainstream secondary school in her daughter’s Education, Health and Care Plan (EHC Plan). Mrs X says the Council overlooked an offer from her preferred school causing uncertainty and distress. The Council has now amended the EHC Plan to name Mrs X’s preferred school and has apologised.
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 has a right of appeal, reference or review 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 use this right. (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
I understand Mrs X’s frustrations and it is clear the Council was at fault – which it has accepted in its complaint response. But we will not start an investigation into Mrs X’s complaint. This is because the injustice to Mrs X arose when the Council failed to name her preferred school in the EHC Plan. That was a decision which was appealable to the SEND Tribunal. We expect parents to use this right unless it is unreasonable for them to do so. This is because the Tribunal can order a council to change an EHC Plan. That is not something we can do. Once appeal rights are available and it is reasonable for a parent to use them, we have no jurisdiction to consider the complaint. That applies here and so we will not investigate.
Final decision
We will not investigate Mrs X’s complaint because it was reasonable for her to appeal to a tribunal.
Investigator's decision on behalf of the Ombudsman