Summary: We will not investigate this complaint about the annual review process and the content of an Education Health and Care Plan. This is because the complainant can appeal to the SEND Tribunal and it is reasonable for her to do so.

The complaint

1. The complainant, whom I shall refer to as Mrs X, says the Council failed to follow the proper process when carrying out the annual review of her son’s Education Health and Care Plan (EHCP). Mrs X says the process took too long and the Council failed to include agreed amendments to the 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. 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 considered information provided by the complainant and the Ombudsman’s Assessment Code.

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My assessment

6. We will not start an investigation into Mrs X’s complaint. This is because Mrs X can appeal the content of her son’s EHCP to the SEND Tribunal. We will not normally investigate a complaint when it is reasonable for someone to appeal to a tribunal. There are no reasons Mrs X should not use the appeal rights available to her. The Ombudsman has no powers to amend what is an EHCP, but the SEND Tribunal can. An appeal can therefore give Mrs X the outcome she wants. An investigation by the Ombudsman could not.
7. Delay in the annual review process is something we can look at. But until an appeal to the SEND Tribunal was complete, we could not say if any fault in the process had caused injustice to Mrs X and her son.

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Final decision

8. We will not investigate Mrs X’s complaint. This is because Mrs X can appeal to the SEND Tribunal and it is reasonable for her to do so.

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Investigator's decision on behalf of the Ombudsman