Summary: We will not investigate this complaint about the Council’s failure to name a special school on a child’s Education Health and Care plan, meaning the child is now without a suitable education. This is because it is reasonable to have expected the complainant to submit a valid appeal to the SEND Tribunal.

The complaint

1. Ms X complains about how the Council has dealt with matters concerning her son’s education. Ms X says the Council has failed to name a special school in her son’s Education Health and Care (EHC) plan and as a result he is not receiving an appropriate education.

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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. 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 carried out an EHC needs assessment for Ms X’s son after he struggled with school attendance. A final EHC plan was issued in November, naming the mainstream school that he was attending at the time. When issuing the EHC plan, the Council informed Ms X of her right of appeal to the SEND tribunal. Ms X did eventually submit an appeal to the SEND Tribunal, but it was refused because it was made late.
8. I will not investigate Ms X’s complaint. This is because the Council’s decision to name the mainstream school in her son’s EHC plan carried a right of appeal to the SEND Tribunal, and it is reasonable to have expected Ms X to have used that right of appeal within the Tribunal’s timeframes. We cannot investigate the actions of the SEND Tribunal and therefore cannot investigate its decision not to allow a late appeal. The education provision currently in place for Ms X’s son is not separable from the school named on the EHC plan.

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Final decision

9. We will not investigate Ms X’s complaint because the matter carries a right of appeal to the SEND Tribunal that it would have been reasonable for her to use.

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Investigator's decision on behalf of the Ombudsman