Summary: We will not investigate Ms B’s complaint about the Council’s decision not to issue her child with an education, health and care (EHC) Plan. This is because Ms B has a right of appeal to a tribunal and it would be reasonable for her to use it.

The complaint

1. Ms B complains about the Council’s decision not to issue her child with an EHC Plan and how it reached its decision. She says this has impacted her child’s wellbeing and she would like the decision to go back to the panel.
2. She also complains the Council has not responded to her stage two complaint and she would like it to recognise and apologise for its poor communication and delays.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. We cannot decide if the Council should issue Ms B’s child with an EHC Plan as we are not an appeal body and we have no powers to do this. If Ms B wishes to appeal the Council’s decision it would be reasonable for her to appeal to the SEND Tribunal. The SEND Tribunal was designed to deal with appeals against local authority decisions about the special educational needs of children and young people, including decisions in relation to EHC needs assessments and EHC Plans. I have seen nothing to suggest it would not be reasonable for Ms B to appeal to the Tribunal and I will not therefore exercise my discretion to investigate the complaint.
9. Ms B says the Council did not get professional advice from Occupational Therapy, Speech and Language Therapy, physiotherapy, and Child and Adolescent Mental Health Services when making its decision. I recognise Ms B is unhappy with the way the Council reached its decision, but any injustice that may be caused by this relates to the decision not to issue an EHC Plan and it is for the Tribunal to decide if the decision was correct.
10. Ms B also complains about the Council’s handling of her complaint, and says it has not responded to her at stage two of its complaints procedure. But the courts have said that where we cannot investigate a complaint about the main or underlying issue, we cannot normally investigate related issues either (R (on the application of M) v Commissioner for Local Administration in England [2006] EWHC 2847 (Admin)). So, where the substance of a complaint is not subject to investigation, the Ombudsman does not investigate the Council’s handling of the issue in isolation.

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Final decision

11. We will not investigate Ms B’s complaint because she has a right of appeal to the SEND Tribunal and it would be reasonable for her to use it. We will not investigate the Council’s complaint-handling as a standalone issue.

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Investigator's decision on behalf of the Ombudsman