The Ombudsman's final decision
Summary: We cannot investigate Mrs X’s complaint about the Education, Health and Care Plan process for her son. Mrs X appealed to the First-tier Tribunal (Special Educational Needs and Disability). This places the complaint outside our jurisdiction.
The complaint
The complainant, whom I shall refer to as Mrs X, complained about the Education, Health and Care Plan (EHC Plan) process for her son. Mrs X disagrees with the school the Council named in the EHC Plan. Mrs X says the Council has acted unlawfully and has ignored evidence. Mrs X says the Council’s actions meant she had to appeal to the Tribunal incurring avoidable costs. Mrs X is unhappy with how the Council has dealt with her complaint.
The Ombudsman’s role and powers
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 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.
Parents who want to challenge decisions about EHC Plans have a right of appeal to the Tribunal. It is the mechanism set up by Parliament for parents to challenge such decisions. We expect parents to use that right unless it was unreasonable for them to do so. Mrs X has used her right of appeal.
The law is clear that when a parent has appealed to the Tribunal, the matter appealed, or anything closely linked, such as the decision-making process, is outside our jurisdiction. This exclusion includes the Council’s actions in related matters such as communication and complaint handling.
The law prevents us investigating from when the appeal rights were available to when the Tribunal issues its decision. Mrs X’s complaint is outside our jurisdiction because of her appeal to the Tribunal. We have no discretion in this matter.
Final decision
We cannot investigate Mrs X’s complaint because she has appealed to the Tribunal.
Investigator's decision on behalf of the Ombudsman