Summary: We will not investigate this complaint about the Council’s handling of an Education, Health and Care Plan. This is because the complainant has used his right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) and the courts have decided that the Ombudsman cannot intervene where the right to appeal has been used. It would also be reasonable for the complainant to pursue any claim of discrimination in court if not included in matters before the Tribunal.

The complaint

1. Mr X complains about the Council’s handling of his child’s Education, Health and Care (EHC) plan. He says his child’s special educational needs have not been met.
2. Mr X also complains about the Council’s handling of complaints about the matter and discriminating against his son.

Back to top

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. 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)
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. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

Back to top

How I considered this complaint

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

Back to top

My assessment

9. Mr X complains the school named on his child’s EHC plan is not appropriate. He says this has had a negative impact on him and his family.
10. During mediation, the Council agreed to amend the EHC plan, however Mr X says the Council has not completed these actions.
11. Mr X has appealed to the SEND Tribunal. The law says we cannot investigate matters which have been or could have been considered at Tribunal. This includes content of the EHC plan such as the named setting in section I and the Council not completing the actions set out during mediation.
12. Mr X says the Council has discriminated against his son because of his disability. We have no power to decide if a council has discriminated against someone. If the alleged discrimination is because of the education provision and named school setting it is part of Mr X’s appeal to the SEND Tribunal. If it is because of something else, it would be reasonable for Mr X to make a discrimination claim in court.
13. Mr X complains about the Council’s handling of his complaint. We do not investigate how a Council has handled a complaint if we are not investigating the subject of the complaint. That is the case here.

Back to top

Investigator's decision on behalf of the Ombudsman