Decision : Closed after initial enquiries
Decision date : 10 Apr 2022
The Ombudsman's final decision:
Summary: We will not investigate this complaint about the Council’s decision not to issue an Education Health and Care plan. This is because it is reasonable for Mrs X to appeal to Tribunal.
- Mrs X says the Council has not fully assessed her son’s special education needs and this has meant her son has been absent from school. Mrs X says this has caused her distress and prevented her son from getting an education. Mrs X wants the Council to complete an Educational Health and Care (EHC) plan.
The Ombudsman’s role and powers
- The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (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 Mrs X and the Council.
- I considered the Ombudsman’s Assessment Code.
- Mrs X said Y stopped attending school in October 2021. She said he has special education needs. Mrs X asked the Council to assess Y for an EHC plan in December 2021. The Council decided not to issue a plan in February 2022 stating his needs could be met in his existing school. Mrs X subsequently complained to the Council about its failure to provide alternative provision.
- The Council’s decision not to issue Y an EHC plan is appealable to the SEND Tribunal. It is reasonable for Mrs X to use this right of appeal therefore this complaint is outside of our jurisdiction. The Council’s decision not to provide Y alternative education is based on its decision not to issue Y an EHC plan. This matter is not separable from the Council’s decision not to issue a plan. Y still has a place available at the school.
- We will not investigate this complaint about the Council’s assessment of a child’s special educational needs. This is because Mrs X has a right of appeal to Tribunal and it would be reasonable to expect her to use this if she is unhappy with the Council’s decision not to issue an EHC plan.
Investigator's decision on behalf of the Ombudsman