Summary: We will not investigate Mrs X’s complaint about the content of an Education Health and Care Plan. This is because it is reasonable for Mrs X to appeal to the SEND Tribunal. If Mrs X wants to challenge the Council’s decision not to provide her daughter with free transport she can do so through the Council’s own appeals process.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complained about the way the Council prepared her daughter’s Education Health and Care Plan (EHCP) and in particular, the school named in the EHCP. Mrs X wants the Council to provide her daughter with free transport to school. This matter is linked to the school named in the EHCP as it potentially affects her daughter’s eligibility for transport.

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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 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)
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.
5. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide it would be reasonable for the person to ask for an organisation review or appeal. (Local Government Act 1974, section 24A(6))

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How I considered this complaint

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

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My assessment

8. We will not start an investigation into Mrs X’s complaint.
9. As explained in paragraph 3, we will not normally investigate a complaint where someone can appeal to a court or tribunal about the same matter. We have discretion to set aside this rule where we decide there are good reasons. We will not do that here because:
• It is reasonable to expect Mrs X to appeal to the SEND Tribunal; and
• there are no good reasons why appealing to the Tribunal is not suitable.
10. An appeal to the Tribunal can result in changes to the content of the EHCP. An investigation by the Ombudsman could not achieve this. We will not therefore investigate this point.
11. Ultimately, Mrs X wants the Council to provide her daughter with free transport to school. Councils must have a home to school transport policy and a means by which parents can appeal the Council’s decisions.
12. If the Council refuses an application from Mrs X for home to school transport, she can challenge it via the Council’s own appeals process. This is separate to any appeal Mrs X might make to the SEND Tribunal. If the Council refused to consider Mrs X’s appeal, or she was unhappy with the eventual outcome, we could consider a fresh complaint from Mrs X. We could look to see if there was any fault with how the Council considered and decided her appeal.

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Final decision

13. We will not investigate this complaint because it is reasonable for Mrs X to use the appeal rights which are available to her.

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Investigator's decision on behalf of the Ombudsman