Summary: We will not investigate this complaint about the Education, Health and Care Plan process for Mrs X’s child. This is because Mrs 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 Mrs X, complained about the Education, Health and Care Plan (EHC Plan) process for her child (Y). Mrs X says the Council named an unsuitable school in Y’s EHC Plan leaving them without appropriate support. Mrs X says communication from the Council was poor and it provided misleading information.

Back to top

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. 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)
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.

Back to top

How I considered this complaint

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

Back to top

My assessment

7. We will not start an investigation into Mrs X’s complaint.
8. Parents who are unhappy with the content of their child’s EHC Plan have a right of appeal to the Tribunal. It is the mechanism set up by Parliament for parents to challenge the content of an EHC Plan. We generally expect parents to use their appeal right unless it is unreasonable for them to do so. We cannot investigate where we decide it was reasonable for a parent to have appealed.
9. When a parent has used their right of appeal it places the matter appealed outside our jurisdiction. This applies from when the appeal rights were available to when the Tribunal issues its decision. We are also barred from looking at anything linked to the matter appealed. So, where a parent has appealed the school named in an EHC Plan, we cannot look at any alleged failings in the assessment or consultation process. This is because they cannot be separated from the matter appealed and which the Tribunal could consider. We also cannot look at any alleged loss of education which is linked to a disagreement over the suitability of the school named. The law also says we cannot look at the Council’s conduct during the appeals process.
10. In this case, Mrs X has used her right of appeal to the Tribunal. This means her complaint about the school named in the EHC Plan is outside our jurisdiction. We have no discretion in this matter. It also bars us from looking at any missed education due to the alleged unsuitability of the school named. Communication from the Council about the EHC Plan appealed and the Council’s actions during the appeal are also outside our jurisdiction. Mrs X’s complaint is not one we can consider.

Back to top

Final decision

11. We will not investigate Mrs X’s complaint because she has appealed to the Tribunal. The complaint is therefore outside our jurisdiction.

Back to top

Investigator's decision on behalf of the Ombudsman