Summary: We cannot investigate this complaint about the contents of an education, health and care plan and the provision secured by the Council because it was reasonable for the complainant to appeal to the First-Tier (Special Educational Needs and Disability) Tribunal.

The complaint

1. Mr X complains that, following an annual review, the Council failed to amend his daughter’s Education, Health and Care (EHC) Plan, to include provision that was discussed in the review meeting. Mr X complains his daughter is not properly supported at school and her EHC Plan should clearly specify and quantify the support she needs. Mr X also complains about the way the Council handled his complaint about the issue.

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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 most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
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.
6. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 

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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. Mr X complains about how support for his daughter is delivered by the school and is of the view the Plan should specify and quantify the one to one support his daughter needs. The hours of support are not specified in his daughter’s EHC Plan. Section F of an EHC Plan specifies the provision and carries a right of appeal to the Tribunal. It would have been reasonable for Mr X to appeal to the Tribunal if he was unhappy with the provision in the EHC Plan. Therefore, we cannot investigate Mr X’s complaint.
10. Mr X also complains about the Council’s complaint handling. We will not investigate how the Council dealt with Mr X’s complaint as it is not a good use of public resources to investigate complaints about complaint handling when we are not looking at the substantive issue.

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Final decision

11. We cannot investigate Mr X’s complaint because it would have been reasonable for Mr X to appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman