Summary: We will not investigate Ms X’s complaint about the Education Health and Care Plan process for her son. This is because Ms X has appealed to a tribunal and so the case is outside our jurisdiction.

The complaint

1. The complainant, Ms X, complained about the Education Health and Care Plan (EHC Plan) process for her son (Y). Ms X is unhappy with the school the Council named in the EHC Plan, the way it reached its decision, and the time taken to issue the EHC Plan.

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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. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (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.
5. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)

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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 start an investigation into Ms X’s complaint. This is because Ms X appealed the content of her son’s EHC Plan to the SEND Tribunal. By law, this places the content of the EHC Plan outside our jurisdiction. Any alleged failings in the decision-making process cannot be separated from the matter appealed. We cannot consider the role of Y’s school in the EHC Plan process or the Council’s conduct during the appeal. The education Y is currently receiving is too closely linked to the school appealed and is not something we can consider. All of these issues are outside our jurisdiction.
9. Delay in the EHC Plan process is something we can consider. But we could not assess the injustice from any delay until the tribunal process is complete. Ms X can bring this part of her complaint back to the Ombudsman when her appeal has concluded. We can then decide if an investigation is appropriate.

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Final decision

10. We will not investigate Ms X’s complaint because she has appealed to a tribunal.

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Investigator's decision on behalf of the Ombudsman