Summary: We cannot investigate this complaint that the Council has failed to make amendments to a child’s Education Health and Care plan. This is because the complainant has appealed about the same matter to a tribunal.

The complaint

1. Miss X complains that the Council has failed to make amendments to her child’s Education Health and Care (EHC) plan. Miss X said the Council has failed to include information from therapeutic assessments, despite agreeing to do so during mediation.

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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. 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)

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How I considered this complaint

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

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My assessment

8. The Council carried out an EHC needs assessment for Miss X’s child and issued a final EHC plan. Miss X has appealed Section B (Special Educational Needs) and Section F (Provision) of the plan to the SEND Tribunal.
9. I cannot investigate Miss X’s complaint. The amendments she is seeking are to Sections B & F of her child’s EHC plan. However, she has appealed the contents of the EHC plan to the SEND Tribunal and the contents of Sections B & F form part of that appeal. By law, this places all matters which relate to the contents of these sections of the final EHC plan outside our jurisdiction with no discretion to investigate.
10. Miss X also asked the Ombudsman to investigate the Council’s failure to carry out an annual review of her child’s EHC plan. I have seen no evidence that a complaint about this matter has been raised by Miss X with the Council. Therefore, any complaint about this matter is premature as the Council would first need the opportunity to address the matter through its complaints procedures.

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Final decision

11. We will not investigate Miss X’s complaint because she has appealed to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman