Summary: We will not investigate this complaint about the Education, Health and Care Plan process. Mrs X’s appeal to the Tribunal places much of the complaint outside our jurisdiction. Investigation by the Ombudsman would not lead to a different outcome as far as the rest of the complaint is concerned.

The complaint

1. The complainant, Mrs X, complained about the Council’s handling of her child’s Education, Health and Care Plan (EHC Plan). Mrs X says the Council named an inappropriate placement, failed to properly involve her in the process, and did not explain its decision. Mrs X also says the Council delayed in reviewing her child’s EHC Plan.

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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
• there is no worthwhile outcome achievable by our investigation.

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

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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. We will not start an investigation into Mr X’s complaint.
9. The issue at the heart of this case is the Council’s decision not to name Mrs X’s preferred setting in her child’s EHC Plan. Mrs X disagrees with the school named and how the Council decided it.
10. Parents who are unhappy with the content of their child’s EHC Plan have a right of appeal to the Tribunal. Mrs X has used this right. The law is clear that when a parent has appealed, we have no powers to consider the matter put to the Tribunal. We also cannot consider any closely related matters, such as the Council’s decision-making, or any assessments carried out. We cannot therefore consider this part of Mrs X’s complaint.
11. In its response to Mrs X’s complaint the Council accepted it should have shared its decision-making with her and said this information was now recorded on-line. The Council also accepted delay in the annual review process and offered a remedy of £700 for the seven months of delay. These are issues we could consider as they occurred before Mrs X’s appeal rights were available. But we will not do so as we could not add anything to the Council’s response and investigation would not lead to a different outcome. The Council’s remedy is in line with what we would recommend.

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Final decision

12. We will not investigate Mrs X’s complaint because her appeal to the Tribunal places much of the complaint outside our jurisdiction. Consideration of the rest of the complaint would not lead to a different outcome.

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Investigator's decision on behalf of the Ombudsman