Summary: We cannot investigate Ms X’s complaint about the content of her daughter’s Education Health and Care Plan. Ms X has appealed to the SEND Tribunal about the matter and therefore the law says we cannot investigate.

The complaint

1. Ms X complained the Council did not name a school in her daughter's (Y) Education Health and Care (EHC) Plan. Also, it did not consider her submissions when finalising the plan.
2. Ms X also said the Council communicated poorly with her during the process.
3. Ms X said Y now does not have a school place and the EHC Plan does not accurately reflect her needs.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)
6. 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.
7. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect 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 an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

8. I considered information provided by the complainant and the Council.
9. I considered the Ombudsman’s Assessment Code.

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My assessment

10. Ms X complained the Council did not name a setting in Y’s EHC Plan and it did not consider her submissions when finalising it. Ms X said this meant the plan did not correctly reflect Y’s needs, which was a contributing factor in the Council not being able to find Y a school place.
11. Ms X has appealed to the Tribunal about the content of Y’s EHC Plan.
12. As outlined in paragraph five, we cannot investigate a complaint if someone has appealed to a Tribunal about the same matter. For this reason, we cannot investigate this complaint.
13. Furthermore, we will not consider the Council’s communication with Ms X, or how it handled her complaint. It is not a good use of public resources to investigate complaints about complaint procedures and communication issues, if we cannot deal with the substantive issue.

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Final decision

14. We will not investigate Ms X’s complaint because she has appealed to the SEND Tribunal about the matter and therefore the law says we cannot investigate.

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Investigator's decision on behalf of the Ombudsman