Summary: We will not investigate this complaint about the Council’s decision to refuse an Education, Health and Care (EHC) plan for her child. She says because of this decision, her child missed out on a year of support. This is because it is out of the Ombudsman’s jurisdiction as Miss X appealed to the SEND Tribunal and the claimed injustice flows from the substantive matter considered by the Tribunal.

The complaint

1. Miss X complains about the Council’s decision to refuse an Education, Health, and Care (EHC) plan for her child. She says because of the Council’s decision, her child missed out on a year of support.

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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. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (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.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. The Council completed an EHC needs assessment for Miss X’s child, A. Following the assessment, the Council decided it was not necessary for A to have an EHC plan.
8. Miss X appealed this decision at the SEND Tribunal. This was the appropriate process for Miss X to follow. Miss X’s appeal was successful, and the Tribunal ordered the Council to issue an EHC plan. The Council has since issued the final EHC plan.
9. Miss X wants the Council to remedy the fact A missed out on over a year of support due to its decision not to issue an EHC plan.
10. We cannot investigate this complaint as Miss X has used her right of appeal. Miss X’s position is that the Council should have issued an EHC plan earlier and, if it had done so, A would have received the support he needed earlier.
11. However, as the claimed injustice flows from the substantive decision that was challenged and decided at Tribunal, the Ombudsman has no jurisdiction to now investigate and remedy this. This is because it was a matter for the Tribunal to decide and, while we acknowledge the appeal was successful, this does not mean we can retrospectively apply the Tribunal’s decision and say this was the decision the Council should have made from the beginning.

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Final decision

12. We will not investigate Miss X’s complaint because it is out of the Ombudsman’s jurisdiction. This is because Miss X appealed to the SEND Tribunal and the claimed injustice flows from the substantive matter considered by the Tribunal.

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Investigator's decision on behalf of the Ombudsman