Summary: We will not investigate this complaint about the alleged failure of the Council to include the agreed provision in Mrs X’s child’s Education Health and Care Plan. Only the Special Educational Needs and Disability Tribunal can decide what provision should be included when this is in dispute, so it would be reasonable for Mrs X to use her right of appeal.

The complaint

1. Mrs X said the Council failed to include the agreed provision in her child’s Education Health and Care (EHC) Plan. She wanted it to re-issue the EHC Plan as the right of appeal to the Special Educational Needs and Disability (SEND) Tribunal would take too long and the placement might fail before the appeal was heard.

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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. Mrs X’s complaint is not of delay in rectifying an administrative error the Council has accepted. The Council’s final response to her complaint, which she provided, declined to re-issue an amended EHC Plan and directed Mrs X to the SEND Tribunal.
8. As this is not a matter of delay in putting right an agreed administrative error, we cannot ask the Council to hasten its action. The Council has declined to amend and re-issue the EHC Plan. I accept that the waiting time for an appeal hearing is likely to be long and that Mrs X feels the placement of the child may be at risk in the interim. I also note Mrs X claimed the Council accepted the need for the provision to be as she wishes at a meeting some months ago. But none of those points creates the legal power for the Ombudsman to say what should be included in an EHC Plan where there is a dispute between the Council and Mrs X. The correct route to resolve that impasse is by way of an appeal to the SEND tribunal.

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Final decision

9. We will not investigate Mrs X’s complaint because she has a right to appeal to the SEND Tribunal it would be reasonable to use.

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Investigator's decision on behalf of the Ombudsman