Summary: We will not investigate this complaint that the Council has failed to make an appropriate specialist school place available for the complainant’s son. This is because she may use her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) against the school named in her son’s Education Health and Care plan and it would be reasonable for her to do so.

The complaint

1. The complainant, Miss X, complains that the Council has failed to make an appropriate specialist school place available for her son.

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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 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. Miss X’s son has special educational needs and an Education Health and Care (EHC) plan. Miss X says the school he attends cannot meet his needs. She says the Council should identify and make available a specialist placement for her son and complains that it has not done so.
8. The correspondence Miss X has provided shows that, at the point at which she complained to the Ombudsman, the Council was in the process of reviewing her son’s EHC plan. It had accepted that the current school was not suitable, and was consulting with possible alternatives. It stated however that the school was still delivering the EHC plan provision. An amended EHC plan has now been issued. It sets out the provision to be delivered at the existing school.
9. It is not for the Ombudsman to comment on whether Miss X’s son should have a place at a specialist setting, or whether his EHC plan provision can be delivered at his current school. That is a matter to be determined through the assessment and review process.
10. The recent review of the EHC plan has not resulted in a change of placement. If Miss X disagrees with this outcome, she may use her right to appeal to the Tribunal. Where appeal rights exist the Ombudsman normally expects them to be used. In this case, the Tribunal is the appropriate recourse for Miss X and it would be reasonable for her to use her appeal right. There is therefore no role for the Ombudsman.

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Final decision

11. We will not investigate Miss X’s complaint because it would be reasonable for her to use her right to appeal.

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Investigator's decision on behalf of the Ombudsman