Summary: We will not investigate this complaint about the Council refusing to issue Mrs X’s daughter with an Education Health and Care Plan. It was reasonable for the complainant to appeal the Council’s initial decision to a tribunal. Mrs X then used her appeal rights. The complaint is outside our jurisdiction.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complained the Council twice refused to issue her daughter with an Education Health and Care Plan.

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The Ombudsman’s role and powers

2. 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)
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 and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. We will not investigate Mrs X’s complaint.
8. Parents unhappy with a council’s decision not to issue an EHC Plan can appeal to the SEND Tribunal. We expect people to use this right unless we consider it unreasonable for them to do so.
9. When the Council first refused Mrs X’s request, she had the right to appeal the Council’s decision. Mrs X says the Council’s decision was unlawful. But that is a decision for the Tribunal, not the Ombudsman. The Tribunal could have decided if the Council should assess Mrs X’s daughter for an EHC Plan. That is not a decision we can take. It was therefore reasonable for Mrs X to appeal and so we will not consider this issue.
10. When the Council refused Mrs X’s second request for an EHC Plan, she appealed to the SEND Tribunal. When a parent uses their right of appeal, we have no jurisdiction to consider the complaint from the point the appeal rights were available until the Tribunal issued its decision. We cannot consider any related matters. This point is outside our jurisdiction with no discretion to investigate.

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Final decision

11. We will not investigate Mrs X’s complaint because it was reasonable for Mrs X to appeal to a tribunal. Mrs X then used her appeal rights which places the matter outside our jurisdiction.

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Investigator's decision on behalf of the Ombudsman