Summary: We cannot investigate this complaint that the Council has failed to explain its decision to name a mainstream school in the complainant’s son’s Education Health and Care Plan. This is because she has used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) and this places the matter outside our jurisdiction.

The complaint

1. The complainant, who I will refer to as Mrs X, complains that the Council has failed to explain its decision to name a mainstream educational setting on her son’s Education Health and Care Plan (EHCP).

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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. 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)
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.

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How I considered this complaint

4. I considered information provided by the complainant.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mrs X’s son has special educational needs and an EHCP. Mrs X says the Council decided to name a mainstream school when issuing the EHCP. As she regarded this as inappropriate for her son, she says she was compelled to use her right to appeal to the SEND Tribunal and, as a result, her son spent a considerable period without a school.
7. Mrs X has asked the Council to set out how it reached the view that mainstream education was appropriate for her son. She complains that it has failed to do so.
8. The Ombudsman cannot investigate this complaint because Mrs X used her right to appeal to the SEND Tribunal. The decision Mrs X wants to examine is about a matter which can be the subject of an appeal. Where appeal rights exist, the Ombudsman normally expects them to be used. Where they have been used, we cannot intervene.
9. Mrs X appealed to the SEND Tribunal about the content of the EHCP. This places all matters relating to the content outside the Ombudsman’s jurisdiction, including how the decision to name a mainstream school was made. There is no discretion available to us.

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Final decision

10. We cannot investigate Mrs X’s complaint because she has used her right to appeal to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman