The Ombudsman's final decision
Summary: We cannot investigate this complaint about the Education, Health and Care Plan process. Ms X has appealed to the Tribunal which places the complaint outside our jurisdiction.
The complaint
The complainant, whom I shall refer to as Ms X, complained about the Education, Health and Care Plan process for her son (Y). Ms X is unhappy with the school named and how the Council decided this. Ms X says the school named was unsuitable meaning she had to appeal to the Tribunal.
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 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 cannot investigate Ms X’s complaint. This is because Ms X has appealed her son’s EHC Plan to the Tribunal. By law, this places all matters which relate to the EHC Plan outside our jurisdiction. This exclusion applies from when the appeal rights were available to when the Tribunal issued its decision. It includes the school named in the EHC Plan and how it was decided. Any alleged failings in the assessment process are not separable from the matter appealed to the Tribunal. The complaint is therefore outside our jurisdiction with no discretion to investigate.
Final decision
We cannot investigate Ms X’s complaint because she has used her right of appeal. The case is therefore outside our jurisdiction with no discretion.
Investigator's decision on behalf of the Ombudsman