Summary: We will not investigate Mr X’s complaint about the Council’s decision not to include therapies in his child’s Education, Health and Care Plan. This is because Mr X has the right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) and it would be reasonable for him to do so.

The complaint

1. Mr X complained the Council failed to include therapies as recommended by professionals in his child’s Education, Health and Care (EHC) Plan. Mr X said this meant his child missed out on provision he needed to meet his needs.

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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 Mr X and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Mr X complains the Council failed to include therapies as recommended by professionals in his child’s education, health and care (EHC) Plan. The Council accepts the number of hours stated in the EHC Plan did not match the recommendation in the report and it has apologised. However, the Council is of the view this did not result in a loss of provision and it says a subsequent annual review has shown the child has made progress towards his communication outcomes.
8. When the Council finalised the EHC Plan, it advised Mr X of his right to appeal to the Tribunal if he is unhappy with the contents of it.
9. We cannot investigate this complaint about the content of an EHC Plan as Mr X has the right of appeal to the Tribunal. Where appeal rights exist, the Ombudsman normally expects them to be used, and it would be reasonable for Mr X to do so in this case.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman