Summary: We will not investigate Mrs X’s complaint about an Education Health and Care Plan assessment as it is reasonable to expect her to appeal to the Tribunal.

The complaint

1. The complainant, whom I shall call Mrs X, says the Council did not properly consider the support her child, D, needed before issuing an Education Health and Care Plan (EHC Plan).

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The Ombudsman’s role and powers

2. 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.
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)

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How I considered this complaint

4. I considered information provided by Mrs X and the Council’s responses to her.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mrs X’s child, D, has additional education needs. The Council issued an EHC Plan in June 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.
7. Mrs X complained to the Council that it had not properly assessed D’s needs before issuing the EHC Plan. She said it had not properly taken into account the parent’s wishes or properly explored the settings options. She says this means the EHC Plan does not meet D’s needs. She says this has prolonged the whole process.
8. Mrs X also made a subject access request. This is a Data Protection Act request for the documents the Council holds. Mrs X also complained about the Council’s response to that request.

Analysis

9. The effect of the Council not properly assessing and considering D’s needs is the EHC Plan does not meet D’s needs. Parliament provided a remedy for this by way of appeal to the Tribunal, SEND. It is reasonable to expect Mrs X to appeal and therefore we will not investigate the assessment process.
10. The Information Commissioner’s Office (ICO) is the UK’s independent authority set up to uphold information rights. It promotes openness by public bodies and protects the privacy of individuals. It deals with complaints about public authorities’ failures to comply with data protection legislation. This includes compliance with subject access requests.
11. There is no charge for making a complaint to the ICO, and its complaints procedure is relatively easy to use. Where someone has a complaint about data protection, the Ombudsman usually expects them to bring the matter to the attention of the ICO. This is because the ICO is in a better position than the Ombudsman to consider such complaints. I consider that to be the case here and Mrs X should therefore approach the ICO about his concerns.
12. Mrs X also says the complaints process has been delayed. 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

13. We will not investigate Mrs X’s complaint because it is reasonable to expect Mrs X to have appealed to the Tribunal, and the ICO are better placed to consider a subject access complaint.

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Investigator's decision on behalf of the Ombudsman