Summary: We will not investigate Miss X’s complaint about the Council’s assessment and communication in preparing an Education Health and Care Plan. It is reasonable to expect Miss X to appeal to the Tribunal.

The complaint

1. The complainant, whom I shall call Miss X, says the Council communicated poorly, and failed to properly consider her views, before issuing an Education Health and Care Plan (EHC Plan).

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The Ombudsman’s role and powers

2. 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)
3. 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.
4. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)

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How I considered this complaint

5. I considered information provided by Miss X which included the Council’s reply to her.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Miss X’s child, Z, has additional educational needs. Z is due to move to senior school in September 2022. A child with special educational needs may have an EHC plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the Tribunal can do this.
8. Miss X says she told the Council in the Autumn of 2021 which school she felt met Z’s needs. She says the Council disregarded her communications. She says it named a school in Z’s EHC Plan in February 2022 which would not meet Z’s needs. The Council has told Miss X that she can appeal the EHC Plan content to the Tribunal. It says she has indicated she will.
9. We cannot investigate the same issues a Tribunal is considering.
10. It is reasonable to expect Miss X to appeal to the Tribunal if she disagrees with the school named.
11. The Tribunal is the appropriate remedy for any errors in the assessment process which caused the wrong school to be named.

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Final decision

12. We will not investigate Miss X’s complaint because it is reasonable to expect her to appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman