Summary: We will not investigate this complaint about a draft Education, Health and Care Plan because the complainant can appeal to the Tribunal if he remains unhappy with the content of the Plan once it has been finalised.

The complaint

1. Mr X complains about the information the Council included in a draft Education, health and Care (EHC) Plan and its refusal to fund some of the provision with a personal budget.
2. Mr X says the omission of certain information and provision in the draft EHC Plan means his daughter will not receive the vital support she needs.

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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 Mr X and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Mr X’s complaint to the Ombudsman is about the content the Council has included in his child’s draft EHC Plan and the refusal of a personal budget to fund provision the school may not be able to deliver.
9. While I acknowledge Mr X’s frustrations, we will not investigate this complaint.
10. 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 of the appeal to the Tribunal. This includes the provision in the Plan and how it will be funded.
11. When the EHC Plan is finalised, Mr X will have the right to appeal to the Tribunal if he remains unhappy with the Plan. It is reasonable for Mr X to use this right of appeal. This is because the Tribunal can direct changes to the EHC Plan, we cannot.

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Final decision

12. We will not investigate Mr X’s complaint because he will have the right to appeal to the Tribunal once the EHC Plan is finalised and it is reasonable to expect him to use this right.

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Investigator's decision on behalf of the Ombudsman