Derbyshire County Council (22 011 435)
Category : Education > Special educational needs
Decision : Closed after initial enquiries
Decision date : 05 Dec 2022
The Ombudsman's final decision:
Summary: We will not investigate this complaint about the educational provision for Mrs X’s child. This matter is not separable from matters in respect of which Mrs X has used her right of appeal to a tribunal.
The complaint
- Mrs X says the Council has failed to make the educational provision set out in her child’s Education Health and Care (EHC) Plan.
The Ombudsman’s role and powers
- 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)
- 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.
- 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
How I considered this complaint
- I considered information provided by the complainant.
- I considered the Ombudsman’s Assessment Code.
My assessment
- Although the wait Mrs X has described for the SEND Tribunal is very long, that does not affect our jurisdiction. Where a person appeals against an EHC Plan issued by a council, we have no authority to investigate educational provision made or not made from the date a council issues the Plan until after the Tribunal decides the appeal.
Final decision
- We will not investigate Mrs X’s complaint because the matters of which she complains are not separable from matters in respect of which Mrs X has exercised her right of appeal to the SEND Tribunal.
Investigator's decision on behalf of the Ombudsman