Summary: We will not investigate this complaint that the Council failed to include therapeutic provision in a child’s Education Health and Care plan. This is because the complainant appealed the contents of the plan to the SEND Tribunal.

The complaint

1. Mrs X complains that the Council refused to include therapeutic provision in her child’s Education Health and Care (EHC) plan. Mrs X says that the Council should apologise and reimburse her for provision she arranged privately. Mrs X also complains about how the Council dealt with her complaint about these matters.

Back to top

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 SEND Tribunal in this decision statement.
5. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)

Back to top

How I considered this complaint

6. I considered information provided by the complainant and the Council.
7. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

8. We cannot investigate Mrs X’s complaint that the Council failed to include therapeutic provision in her child’s EHC plan. This is because she appealed this decision to the SEND Tribunal, placing it outside of our jurisdiction. We cannot investigate the Councils failure to arrange the provision whilst her appeal to the was ongoing. This is because the courts have said we cannot investigate the consequences of a decision, if the decision itself is not within our jurisdiction, because it has been challenged with the SEND Tribunal.
9. We can consider complaints about what happened after a tribunal appeal has concluded. However, any complaint about these matters would be premature as it has not yet been considered by the Council. Mrs X would first need to raise a complaint with the Council, and if dissatisfied with its response, she may raise a new complaint with the Ombudsman and ask us to consider the issues raised.
10. I will not investigate Mrs X’s concerns about how the Council dealt with her complaint. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

Back to top

Final decision

11. We will not investigate Mrs X’s complaint because it concerns a decision that was appealed to the SEND Tribunal.

Back to top

Investigator's decision on behalf of the Ombudsman