Summary: We will not investigate this complaint about the Council holding an education review too early. It would be reasonable for
Miss X to use her right to appeal at tribunal if she is unhappy with the result.

The complaint

1. Miss X complains the Council reviewed her child’s Education, Health and Care (EHC) plan earlier than the law allows. Miss X says this meant she felt forced to name a preferred school in the plan before she had a chance to view it. Miss X says this is discriminatory.
2. Miss X also complains the Council has not accepted its actions were against the law. She wants the Council to change its approach and communications around EHC Plan reviews.

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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. The law says when a child is within 12 months of moving to a new phase of education, the Council has a duty to review and make any necessary amendments to their EHC plan. This is to allow the Council to finalise the changes before 15 February in the calendar year when the child will transfer. The Council started reviewing Miss X’s child’s plan 14 months before they were due to transfer to a new phase of education and issued the amended Plan in time. It therefore achieved the result intended by law.
9. Parents can express a preference for which school their child should attend, and Miss X did so. However, while parents can name their preference, it is for the Council to name a school on the final plan. If parents are unhappy with the Council’s decision, they can appeal to the Tribunal.
10. I see no reason, if Miss X was unhappy with the school named because of the review starting early, she could not have used her appeal rights. So, the restriction in paragraph four applies and we will not investigate this complaint.
11. If Miss X does not wish to appeal the final EHC Plan, we must presume she is content with it. This means any injustice she thinks the Council caused by starting the review early is not likely to be significant enough to warrant the Ombudsman investigating.

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Final decision

12. We will not investigate Miss X’s complaint because it would be reasonable for her to appeal to the tribunal if she is unhappy with the final EHC plan.

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Investigator's decision on behalf of the Ombudsman