Summary: We cannot investigate this complaint about the Council’s decision not to issue an Education Health and Care plan and its failure to provide full time education provision for a child. This is because the complainant has lodged appeals with the SEND Tribunal

The complaint

1. Mrs X complains that the Council has refused to issue an Education Health and Care (EHC) plan for her child, despite her providing evidence that one is needed. Mrs X also complains that the Council has failed to arrange suitable full-time education for her child. Mrs X wants the Council to issue an 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.

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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. The Council carried out an EHC needs assessment for Mrs X’s child but concluded that it would not issue an EHC plan. Mrs X has appealed the Council’s decision to the SEND Tribunal and a hearing to consider Mrs X’s appeal is due to sit later this year.
8. I cannot investigate Mrs X’s complaint that the Council has refused to issue her child with an EHC plan. This is because Mrs X has appealed the Council’s decision to a tribunal, which places the matter outside of our jurisdiction.
9. I also cannot investigate Mrs X’s complaint that the Council has failed to arrange suitable full time education provision. The courts have established that if someone has lodged an appeal to the SEND Tribunal, we cannot investigate any matter that is closely linked to the matters under appeal. When making its decision not to issue an EHC plan, the Council has concluded that Mrs X’s child’s current school can meet his needs with the support currently in place. Mrs X disputes this and says her child cannot attend school due to having unmet special educational needs. The issue of educational provision in place for Mrs X’s child is therefore not separable from the Council’s decision not to issue an EHC plan.

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Final decision

10. We cannot investigate Mrs X’s complaint because she has lodged an appeal with the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman