Summary: Miss X complained that the Council failed to issue an appropriate Education Health and Care Plan in time for her daughter’s transfer to post 16 college. Miss X had a right of appeal to the Special Educational Needs and Disability Tribunal, and this prevents us investigating the complaint. We have therefore closed the complaint.

The complaint

1. The complainant, who I refer to as Miss X, complained that the Council delayed in finalising her daughter’s Education, Health and Care (EHC) Plan on time (by end of March 2023) for her transfer to post 16 college.
2. As a result, Miss X says her daughter will not be able to retake her General Certificate Secondary Examinations (GCSEs) this academic year, and which she needs to do to undertake further training.

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The Ombudsman’s role and powers

3. The law says we cannot normally investigate a complaint when someone can appeal 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 appeal. (Local Government Act 1974, section 26(6)(a), as amended)
4. 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.

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How I considered this complaint

5. I have spoken to Miss X on the telephone and considered her written complaint and documents. I issued a draft decision statement to Miss X and to the Council. I have considered any further comments before reaching my final decision.

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What I found

6. There is a right of appeal to the SEND Tribunal against:

• a decision not to carry out an EHC needs assessment or reassessment;
• a decision that it is not necessary to issue a EHC Plan following an assessment;
• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.

Key facts

7. Miss X’s daughter has missed attending school between September to December 2023. Miss X says that this is because the Council did not name the placement post 16 placement until August 2023. She has now appealed to SEND Tribunal.
8. However, Miss X says that she received a final amended EHC Plan by the end of March 2023, as required. But the Council only named the type of placement (mainstream). Miss X says she was not averse to a different placement besides her preferred choice. So, she decided to negotiate with the Council, rather than appeal.
9. Eventually the Council named a mainstream college in August 2023. Miss X did not agree with this, so she then appealed to the SEND Tribunal.
10. The Council subsequently agreed the preferred placement and Miss X’s daughter started there in January 2024.

Findings

11. In March 2023, Miss X had a right of appeal to the SEND Tribunal on the basis that the Council had failed to name a particular placement. I recognise that Miss X thought it best to negotiate with the Council rather than appeal. But Miss X did have this appeal right and I consider that it was reasonable for her to use that remedy.
12. On that basis, I consider that we cannot investigate Miss X’s complaint because of this right of appeal.

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Final decision

13. I am closing the complaint because we do not have the powers to investigate.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman