Summary: We will not investigate this complaint about the Council has failed to make appropriate educational provision for a child. This is because it is reasonable for the complainant to use their right of appeal to a tribunal.

The complaint

1. Ms X complains that the Council has failed to make appropriate educational provision for her child and has failed to properly involve her or communicate with her about these matters.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating.
3. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (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 issued an Education Health and Care plan for Ms X’s child naming her current school until the end of the 2022/2023 school year and a type of establishment from September 2023. Ms X complained at the time of the plan being issued and again in November 2023. The Council carried out a review and issued a further plan in December, again naming a type of establishment.
8. Ms X is unhappy with the Council’s decision to name a type of establishment rather than a named school, but this is a decision the Council was entitled to take. Parents unhappy with the content of an EHC Plan can appeal to the SEND Tribunal. Once appeal rights are available, we have no jurisdiction to consider related matters. The content of the EHC Plan, including the type of provision named, is therefore outside our jurisdiction. How it reached its decision, including any decision to consult with Ms X, is not separable from the decision itself.
9. Ms X says communication from the Council was poor. But any injustice from solely this point is not significant enough to warrant an investigation.

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Final decision

10. We will not investigate Ms X’s complaint because it was reasonable for her to use her right of appeal to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman