Summary: We will not investigate Ms X’s complaint about the Council’s handling of her request it issue her son with an Education, Health and Care Plan. Ms X 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 Ms X, complained about the Council’s handling of her request it issue her son (Y) with an Education, Health and Care Plan (EHC Plan). Ms X says the Council wrongly refused her request and took too long to issue a decision. Ms X says the Council’s actions left her son without a suitable full-time education and meant she had to appeal to a tribunal.

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The Ombudsman’s role and powers

2. 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)
3. 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.
4. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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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 Ms X’s complaint.
8. Firstly, the injustice from the delay Ms X complains about is not significant enough to warrant us investigating. The Council has explained the delay and apologised. An investigation would not achieve a different outcome.
9. More importantly, the issue at the heart of this case is the Council’s decision not to issue Y with an EHC Plan. Ms X says the Council’s decision is wrong and this has affected her son’s education.
10. Parents who want to challenge a council’s decision about an EHC Plan have a right of appeal to the SEND Tribunal. It is the mechanism set up by Parliament for parents to challenge such decisions. Ms X has used her right of appeal.
11. The law is clear that when a parent has appealed to a tribunal, the matter appealed, or anything closely linked, is outside our jurisdiction. This exclusion applies from when the appeal rights were available to when the Tribunal issues its decision. It includes the suitability of the education currently provided to Y. We have no discretion in this matter. Ms X’s complaint about the Council’s decision not to issue her son with an EHC Plan is not one we can consider.

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Final decision

12. We will not investigate Ms X’s complaint because she has appealed to a tribunal. This place the complaint outside our jurisdiction.

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Investigator's decision on behalf of the Ombudsman