Summary: We will not investigate this complaint about the Education Health and Care Plan process. This is because the complainant has used their right of appeal and can submit a further appeal if they remain unhappy. This places the complaint outside our jurisdiction.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complained the Council refused to carry out an Education Health and Care Needs Assessment (EHCNA) for her son. This meant she had to appeal to the SEND Tribunal. Mrs X says the delay means her son may not get a place at her preferred school. Mrs X is also unhappy with the Education Health and Care Plan (EHC Plan) the Council eventually issued and how it decided its content. Mrs X says this will require a further appeal to the SEND Tribunal. Mrs X wants the EHC Plan amending, ideally via a fast-track process.

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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. (Local Government Act 1974, section 26(6)(a), as amended)
4. 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)
5. 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

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 investigate Mrs X’s complaint.
9. An EHCNA is the first stage of the EHC Plan process. Parents who are unhappy with a council’s decision about whether to assess a child for an EHC Plan can appeal to the SEND Tribunal. Mrs X used her right of appeal.
10. When a parent has appealed, the Ombudsman has no jurisdiction to consider related matters from the point at which the appeal rights were engaged to the point at which the SEND Tribunal issues its decision. This exclusion also applies if a council eventually concedes the appeal.
11. The courts have held that the above restriction applies to anything related to the matters at issue in the appeal. It includes how the Council reached its initial decision, the Council’s conduct during the appeal process, and the information it provided to the Tribunal. The education provided to the appellant’s child during the appeal is also generally caught by this exception. We also cannot look at any injustice claimed as a consequence of the decision appealed. For example, if the appellant’s child did not secure a place at their preferred school.
12. The original decision to refuse an EHCNA is not one we can consider.
13. Mrs X is now unhappy with the EHC Plan the Council has issued. But again, this is not something we will consider. As above, parents unhappy with an EHC Plan can appeal to the SEND Tribunal. It is the mechanism established by Parliament for parents to challenge such decisions. The SEND Tribunal can order changes to the EHC Plan. It can give Mrs X the outcome she wants. An investigation by the Ombudsman could not. It is therefore reasonable for Mrs X to use her right of appeal.

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Final decision

14. We will not investigate Mrs X’s complaint because she has appealed to a tribunal. It is reasonable for Mrs X to submit a further appeal if she remains unhappy.

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Investigator's decision on behalf of the Ombudsman