Summary: We will not investigate Mrs X’s complaint about the Education, Health and Care Plan process for her daughter. Mrs X has appealed to the First-tier Tribunal (Special Educational Needs and Disability). This places the complaint outside our jurisdiction.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complained about the Education, Health and Care Plan (EHC Plan) process for her child. Mrs X says the Council refused her request for an EHC Plan three times. When it eventually agreed to issue an EHC Plan, Mrs X says communication from the Council was poor and it named an inappropriate type of placement. Mrs X says this means she has had to appeal to a Tribunal.

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The Ombudsman’s role and powers

2. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
3. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (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 and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. We will not start an investigation into Mrs X’s complaint.
8. Parents who want to challenge decisions about EHC Plans have a right of appeal to the Tribunal. It is the mechanism set up by Parliament for parents to challenge such decisions. We expect parents to use that right unless it was unreasonable for them to do so. Mrs X had the chance to appeal the Council’s previous decisions not to issue an EHC Plan and it was reasonable for her to do so. We will not therefore look at those previous decisions.
9. Turning to more recent issues, Mrs X has now used her right of appeal against the content of the EHC Plan the Council issued.
10. The law is clear that when a parent has appealed to the Tribunal, the matter appealed, or anything closely linked, such as the decision-making process, is outside our jurisdiction. The communication issues Mrs X complains about link to how the Council decided the content of the EHC Plan.
11. The law prevents us investigating from when the appeal rights were available to when the Tribunal issues its decision. Mrs X’s complaint about the content of the EHC Plan is therefore outside our jurisdiction because of her appeal to the Tribunal. We have no discretion in this matter.

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Final decision

12. We will not investigate Mrs X’s complaint because she has used her right of appeal. The complaint is therefore outside our jurisdiction.

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Investigator's decision on behalf of the Ombudsman