Summary: We will not investigate Mx X’s complaint about how the Council handled a review of her child’s Education Health and Care plan. This is because it is reasonable for her to have used her right of appeal to a tribunal about the contents of the plan and because investigating other matters would not achieve a different outcome.

The complaint

1. Mx X complains about how the Council reviewed her child’s Education Health and Care (EHC) plan. She says the Council failed to properly listen to her views and ignored advice from professionals leading to an inadequate plan being issued with a school which was named that could not meet her child’s needs. Mx X says this resulted in her daughter’s permanent exclusion. Mx X also complains that the Council missed deadlines.

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The Ombudsman’s role and powers

2. 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 further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
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 – SEND) 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 and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. I will not investigate Mx X’s complaint. The contents of the Council’s EHC plan, including the school named, carries a right of appeal to the SEND Tribunal. The Ombudsman has no authority to instruct the Council to conduct a reassessment of Mx X’s child’s needs and name a different school. Only the Tribunal can do this. Consequently, it is reasonable to expect Mx X to have appealed the decision to the Tribunal, and so we will not investigate.
8. The Council did acknowledge that there was a delay in issuing a final EHC Plan following the annual review. I will not investigate this element of Mx X’s complaint. This is because the Council has apologised to Mx X for the delay and I consider this to be an appropriate response in the circumstances. Therefore, investigation into the delay would not lead to a different outcome.

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Final decision

9. We will not investigate Mx X’s complaint because it is reasonable for her to have used her right of appeal to a tribunal about the contents of the plan and because investigating other matters would not achieve a different outcome

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Investigator's decision on behalf of the Ombudsman