Summary: We will not investigate Miss X’s complaint about the Council’s decision not to amend her son’s Education Health and Care Plan to name a different school or a type of school. That is because she had the right to appeal that decision to the SEND Tribunal.

The complaint

1. Miss X complained about how the Council dealt with her child, Y’s Education, Health and Care Plan between September 2022 and February 2023. She is unhappy with its decision to arrange an early annual review and the way the annual review was handled. She said the Council agreed to amend Y’s EHC Plan, but then decided not to do so. She also said there were delays in the Council’s complaints process.

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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. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))

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How I considered this complaint

5. I considered information provided by the complainant.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. In June 2022, the SEND Tribunal ordered the Council to name school 1 in Y’s EHC Plan, which was Miss X’s preferred school. The Council duly named school 1 in a final EHC Plan. Following that, Miss X changed her view. The Council initially said it would look for an alternative school for Y and issue an amended plan. It then changed its approach and decided to hold an early annual review (AR). Following the annual review meeting, the Council decided to maintain Y’s EHC Plan without amendment. Miss appealed that decision.
8. The Council initially said it would consider a different placement for Y, but then decided to hold an AR. We would not be critical of the Council holding an AR, where the parent wants to change the named school, or the child is not attending the school. In any event, Ms X appealed the Council’s decision not to amend the Plan. We have no jurisdiction to investigate where it has been to appeal. Miss X also complained about how the Council handled the AR as she said its actions prejudged the decision not to amend the Plan. It was appropriate for her to raise these as part of the Tribunal appeal.
9. The Ombudsman cannot decide whether the school, named in a child’s EHC Plan, is suitable for that child. This is a matter for the SEND Tribunal. We will not investigate those parts of the complaint that relate to the Council’s decisions about which school was appropriate for Y. When the Council decided to maintain Y’s EHC Plan, Miss X had the right to appeal that decision, which she has done.
10. We will not investigate Miss X’s complaint further. The Council named the school specified by the SEND Tribunal in the EHC plan, and ensured there was a place available. There is not enough evidence of fault to justify our involvement.

Complaints handling

11. Miss X also complained about delays in the complaints process. We will not investigate these delays because we are not investigating the substantive matters.

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Final decision

12. We will not investigate Miss X’s complaint because it concerns the school named in Y’s EHC Plan, which is a matter for the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman