The Ombudsman's final decision
Summary: We will not investigate Miss X’s complaint about her child’s Education, Health and Care (EHC) plan. This is because she has used her right of appeal to a tribunal.
The complaint
Miss X complains the Council: Did not obtain appropriate evidence when assessing her child’s Special Educational Needs (SEN), and, Did not provide a suitable SEN provision in her child’s EHC Plan, and, Named a school in her child’s final EHC Plan which cannot meet their needs, and, Failed to arrange alternative education provision for her child.
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 – SEND) considers appeals against council decisions about 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 I considered the Ombudsman’s Assessment Code.
My assessment
Miss X’s child, Y has an EHC Plan. The EHC Plan sets out Y’s SEN provision and names a school which Miss X says is unable to meet Y’s needs.
Miss X complains the Council didn’t obtain appropriate evidence when assessing Y’s SEN. She says this resulted in Y’s EHC Plan not meeting their needs. This includes the plan naming a school which cannot meet Y’s needs.
Miss X has appealed to the SEND Tribunal.
I cannot investigate the content of the EHC Plan, including the SEN provision detailed in the plan and the Council’s decision to name the school in the plan. This is because Miss X exercised her right to appeal to the SEND Tribunal.
I am also unable to investigate the evidence the Council obtained when drafting the EHC Plan as it would overlap with the role of the Tribunal, which has powers to order reports be completed.
Miss X says she felt she had no choice but to withdraw Y from the school because Y’s needs were not being met. She complains the Council have not ensured Y is receiving a suitable education following Y being removed from school.
The issue of the lack of suitable education is linked to the Council’s decision to name the school in the EHC Plan. Therefore, we cannot investigate this as it is linked to matters the Tribunal is considering.
Final decision
We will not investigate Miss X’s complaint. We cannot investigate matters which are subject to, or not separable from, a tribunal appeal.
Investigator's decision on behalf of the Ombudsman