Summary: We will not investigate Mrs X’s complaint about the Council’s handling of her child’s education. Mrs X has used her right of appeal and that places much of the complaint outside our jurisdiction. Investigation of the rest of Mrs X’s complaint would not lead to a different outcome and so is not justified. We cannot consider complaints about what happens in schools.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains about the Council’s handling of her daughter’s education. Mrs X is unhappy with how the Council reviewed her daughter's Education, Health and Care Plan (EHC Plan) and decided its content. Mrs X says the Council failed to include an appropriate setting or provision, leaving her daughter (Y) without a suitable education. Mrs X is unhappy with how council officers have dealt with her case. Mrs X say the Council’s actions forced her to appeal to the Tribunal.

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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.
5. 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:

• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

6. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)

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How I considered this complaint

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

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My assessment

9. The Council has responded to Mrs X’s complaints. It has explained why it has not included the provision or setting Mrs X asked for in Y’s EHC Plan. The Council set out the consultation process. It apologised for wrongly taking Y’s case to an ASD (Autism) panel and for officers arriving late for meetings. Mrs X had raised concerns about things happening in Y’s school and the Council directed Mrs X back to the school. Mrs X had said the Council had failed to provide Y with suitable alternative education. The Council’s view was that the school named in Y’s EHC Plan was a suitable setting. If Mrs X wanted to challenge the provision or setting in the EHC Plan, then an appeal was the appropriate route. Mrs X had used her right of appeal.
10. We will not start an investigation into Mrs X’s complaint.
11. The issue at the heart of this complaint is the setting and provision in Y’s EHC Plan. Mrs X is unhappy with the content of the EHC Plan and how it was decided. Parents who want to challenge 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 such decisions. When a parent has used their right of appeal, we have no powers to consider the matter appealed or any directly related matters. This includes how the Council decided what to include in the plan or any lack of education due to a disagreement over the content of the plan. We simply have no jurisdiction to consider these issues and so we will not consider Mrs X’s complaint.
12. The Council has also accepted some issues around the actions of officers and how it handled Mrs X’s case. Where we could separate them from the matter appealed, further consideration of those issues would not achieve anything more. We could not add anything to the Council’s response. It is the content of the EHC Plan which needs resolution – that is for the Tribunal – not the Ombudsman.
13. Mrs X’s concerns about what has happened in Y’s school are also not for us. The law prevents us from considering most complaints about what happens in schools. As the Council has said, Mrs X needs to direct her concerns to the school.

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Final decision

14. We will not investigate Mrs X’s complaint because:
• She has appealed to the Tribunal and that places much of the complaint outside our jurisdiction.
• Further consideration of other issues would not lead to a different or worthwhile outcome.
• We cannot consider most complaints about what happens in schools.

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Investigator's decision on behalf of the Ombudsman