Summary: The Ombudsman cannot investigate Ms B’s complaint that the Council has failed to explain why it ignored professional advice when completing her son’s Education Health and Care Plan. This is because she has used her right to appeal against the content of the Plan.

The complaint

1. The complainant, who I will refer to as Ms B, complains that the Council has failed to explain why it ignored professional advice when completing her son’s Education Health and Care Plan (EHCP).

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. 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)
4. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
5. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))

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How I considered this complaint

6. I have considered what Ms B has said in support of her complaint and in response to my draft decision.

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What I found

7. Ms B’s son has special educational needs and an Education Health and Care Plan (EHCP). Ms B says the annual review of the EHCP took place in March 2019, after which she raised a number of questions. She says the Council issued a final EHCP in July 2019 without answering her questions. She says she immediately appealed to the Special Educational Needs and Disability Tribunal (SEND) against the content of the EHCP, though she subsequently decided not to proceed with her appeal.
8. Ms B argues that, in completing the EHCP, the Council ignored the professional advice it obtained. She complains that it has failed to respond to her repeated questions about how it reached its decision.
9. The Ombudsman cannot investigate Ms B’s complaint. Her complaint relates to the way the Council’s officers decided the content of her son’s EHCP. The content of an EHCP is a matter which can be appealed to SEND, and the Ombudsman normally expects appeal rights to be used where they exist.
10. Ms B used her right to appeal. When appeal rights are used, this places the matter outside the Ombudsman’s jurisdiction. This is the case even though the appeal may not subsequently be heard. The Ombudsman cannot intervene.
11. Ms B also complains that the Council failed to respond to her concerns as required under its complaint procedure. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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Final decision

12. The Ombudsman cannot investigate this complaint. This is because Ms B has used her right to appeal.

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Investigator's decision on behalf of the Ombudsman