Summary: We will not investigate this complaint about the Council’s decision to name a school in an Education, Health, and Care Plan. This is because Mrs X had a right of appeal if she was unhappy with the Council’s decision, and it would have been reasonable to expect her to have used it.

The complaint

1. Mrs X said the Council did not properly consult with available schools, after a review of her child’s (Y) Education, Health, and Care (EHC) Plan.
2. Mrs X said the information it provided to schools was wrong and left Y with only one choice available. Mrs Y is currently unhappy with the school Y is attending and said the Council’s actions has caused unnecessary stress toward her family, at a significant time in Y’s schooling and GCSE’s.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. 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

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. Mrs X said the Council sent an old version of Y’s EHC Plan to several schools following an EHC review. Mrs X said this will have affected the availability of schools that said they could meet Y’s special educational needs. She said this resulted in the Council naming a school in Y’s final EHC Plan.
9. The Council said it had checked a sample of the messages it sent to the schools it had earlier consulted with and found it had sent the correct information.
10. While I acknowledge Mrs X’s concerns because she is now worried about the impact of having only one choice of school, we will not investigate this complaint.
11. The courts have established that if someone had a right of appeal to the Tribunal and it was reasonable to expect them to use it, the law says we cannot investigate any matter which could have been part of the appeal to the Tribunal. This includes how the Council carried out its consultations.
12. After the consultations, the Council issued a plan naming Y’s school and that decision had an appeal right. Noting that Mrs X was concerned about this decision, it would have been reasonable to expect her to have used that appeal right. This is especially so because only the Council or the Tribunal can direct a change to the school named in an EHC plan, we cannot.

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Final decision

13. We will not investigate Mrs X had a right of appeal about the Council’s decision, and it would have been reasonable to expect her to have used it.

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Investigator's decision on behalf of the Ombudsman