Summary: We will not investigate this complaint about information the Council chose to consider when finalising an Education Health and Care Plan. Miss X had a right to appeal to the SEND Tribunal and it would have been reasonable to expect her to have used this right.

The complaint

1. Miss X complained the Council did not consider all her submissions when finalising her daughter’s (Y) Education Health and Care (EHC) Plan.
2. Miss X also complained the Council communicated with her poorly about the matter.
3. Miss X said this has led to the EHC Plan not reflecting Y’s 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. 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)
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.
9. I considered the Ombudsman’s Assessment Code.

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My assessment

10. Miss X complained there was a breakdown in communication between her and the Council during the EHC needs assessment process. She said this led to it not fully considering her submissions when finalising Y’s EHC Plan. Miss X said Y’s plan does not accurately reflect her needs as a result. Nor does it provide her with the required provision.
11. In its complaint response, the Council reminded Miss X of her right of appeal to the Tribunal, highlighting it had previously told her of this.
12. The Council also provided us with a copy of the letter it sent to Miss X setting out this right.
13. The Tribunal was set up by parliament to allow people to appeal against Council decisions on SEND matters. The Tribunal considers appeals about the provision set out in an EHC Plan and has powers to order a Council to act, such as by amending a plan, following an appeal being heard.
14. These are powers the Ombudsman does not have and therefore, although the appeal period has now ended, I consider it would have been reasonable for Miss X to have raised these matters with the Tribunal. We will not exercise discretion to consider the complaint because of this.
15. Therefore, we will not investigate this complaint.
16. Furthermore, we will not consider the Council’s communication or complaint handling. It is not a good use of public resources to investigate complaints about complaint procedures or communication issues, if we decide not to deal with the substantive issue.

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Final decision

17. We will not investigate Miss X’s complaint because she had a right to appeal to the SEND Tribunal and it is would have been reasonable to expect her to have used this right.

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Investigator's decision on behalf of the Ombudsman