Summary: We will not investigate this complaint about the Education, Health and Care Plan process for Mrs X’s child. This is because it was reasonable for Mrs X to appeal to the First-tier Tribunal (Special Educational Needs and Disability). An investigation into the remainder of Mrs X’s complaint would not lead to a different outcome.

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 said the Council had named an inappropriate school in the EHC Plan – contrary to the advice of professionals. Mrs X also said the Council had failed to amend the EHC Plan and had provided incorrect information about the annual review process and her appeal rights.

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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.
5. 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:

• 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

6. I considered information provided by the complainant and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. We will not start an investigation into Mrs X’s complaint.
9. Parents who are unhappy with their child’s EHC Plan have a right of appeal to the Tribunal. We expect parents to use that right unless it is unreasonable for them to do so. It is the mechanism set up by Parliament for parents to challenge the educational provision or the setting named in their child’s EHC Plan.
10. In this case it was reasonable for Mrs X to challenge the school named by appealing to the Tribunal. This is because the Tribunal could give Mrs X the outcome she wanted. The Tribunal can order councils to change EHC Plans. That is not something we can do. Because it was reasonable for Mrs X to appeal, we will not consider her complaint.
11. Mrs X is concerned about how the Council decided the content of the EHC Plan. She says it ignored the advice of professionals and there were issues with the consultation process. Because such issues would potentially lead to an unsuitable EHC Plan, they are directly linked to a matter which Mrs X could have appealed to the Tribunal. We will not therefore consider them. The Council also responded to these issues in its complaint responses.
12. Mrs X is also concerned about information the Council gave her regarding the annual review process and her right of appeal. I note the Council has provided responses to these two points and an investigation would not add anything or lead to a different outcome.

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Final decision

13. We will not investigate Mrs X’s complaint because it was reasonable for her to appeal to the Tribunal. An investigation into the rest of her complaint would not lead to a different outcome.

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Investigator's decision on behalf of the Ombudsman