Summary: We will not investigate this complaint about the Council’s actions in issuing an Education Health and Care Plan and the educational provision being made. Mrs X has exercised her right of appeal to a tribunal and the matters complained of are not separable from that.

The complaint

1. Mrs X said the Council forced her child to continue in a mainstream school when the Education Health and Care (EHC) Plan it issued stated he needed a special school. She said the Council refused to consult the schools she had requested and the EHC Plan issued did not meet her child’s needs. She said the Council issued the EHC Plan to meet the statutory deadline for doing so, but it stated it would be amended later with delayed reports included.

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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 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)
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. The courts have held that where someone has appealed to the SEND Tribunal, we have no authority to consider what educational provision should be made for the child concerned. (Local Government Act 1974, section 26(6)(a), R v the Commissioner for Local Administration ex parte PH, 1999);  R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407

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How I considered this complaint

5. I considered information provided by the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. The Council issued an EHC Plan for Mrs X’s child. The Plan named no specific school, but it stated the child would need a special school. The correspondence I have seen shows the Council has told Mrs X that her child can remain at his mainstream primary school until the matter is resolved. Mrs X has appealed to the SEND Tribunal. Despite it being clear from the correspondence that the child is attending a mainstream school when he needs a special school, and that this situation may continue for some time, we have no jurisdiction to investigate.

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Final decision

8. We will not investigate Mrs X’s complaint because the matters of which she complains are not separable from the matter of what educational setting is most suitable for her child, which is a matter for the SEND Tribunal. A legal judgement has confirmed the limit on our jurisdiction.

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Investigator's decision on behalf of the Ombudsman