Summary: We will not investigate this complaint about the Council’s decision to remove provision from the complainant’s son’s Education Health and Care plan. This is because the complainant has the right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) and it would be reasonable for her to do so.

The complaint

1. The complainant, Miss X, complains that the Council has unlawfully and unreasonably removed provision from her son’s Education Health and Care (EHC) plan.

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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 an EHC plan. His provision is delivered through education otherwise than at school, for which the Council provides a personal budget. Miss X complains that, following the annual review of the EHC plan, the Council decided to remove significant parts of her son’s provision. Miss X regards this decision as unreasonable, as her son’s needs have not changed, and unlawful, as the Council has not given a valid reason for its decision.
8. Miss X wants the Council to change its decision and continue to support the provision. In response to her representations, the Council has set out that she may challenge its decision through the mediation and appeal process open to her.
9. The Ombudsman will not investigate Miss X’s complaint. This is because she has the right to appeal to the Tribunal about the decision to change the provision set out in her son’s EHC plan. Where appeal rights exist, the Ombudsman normally expects them to be used, and it would be reasonable for Miss X to do so in this case. We cannot therefore consider the merits of the Council’s decision to remove the provision or the way that decision was made.

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Final decision

10. We will not investigate Miss X’s complaint because she has the right to appeal to the Tribunal and it would be reasonable to do so.

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Investigator's decision on behalf of the Ombudsman