Summary: We will not investigate Mrs X complaint about the content of her child’s Education, Health, and Care Plan. This is because Mrs X had a right of appeal about the Council’s decision here and it would have been reasonable for her to appeal to the SEND Tribunal.

The complaint

1. Mrs X complained the Council removed support from her child, Y’s, Education, Health, and Care (EHC) Plan without justification. She said this had a negative impact on Y’s mental and physical health and their attendance.
2. Mrs X wants the Council to improve its services and provide financial compensation for Y’s missed education and provision.

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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 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)
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.
6. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 

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How I considered this complaint

7. I considered information provided by the complainant.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. An EHC Plan sets out a child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.
10. Y has special educational needs and an EHC Plan. In July 2023, the Council amended the EHC Plan and removed support from it, which Mrs X said Y still needed. She said the Council removed support without any professional advice and it did not consider her views or Y’s needs when amending the EHC Plan.
11. Mrs X said this caused Y to become distressed and their school attendance decreased, they withdrew from activities and their health worsened. She said Y missed education and provision during this time.
12. We will not investigate this complaint about the Council’s decision on the content of an EHC Plan. Mrs X had a right of appeal about this, and it was reasonable for her to have used that right of appeal if she wished to challenge the content.
13. Nor will we investigate Mrs X’s complaint about missed education and loss of provision. The courts have confirmed that we cannot look at the consequences of a council’s decision where the decision itself has been, or could be, the subject of an appeal. Mrs X said the Council amended Y’s EHC plan and the provision was no longer suitable for them which meant they could not access it. This matter relates to the content of the EHC Plan and is therefore not separable from the issues which could have been appealed.

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Final decision

14. We will not investigate Mrs X’s complaint because it concerns matters which could have been the subject of appeal to the SEND Tribunal or are not separable from such matters.

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Investigator's decision on behalf of the Ombudsman