Summary: We will not investigate this complaint about the Council’s decisions to deny the complainant’s requests for specialist educational placements for her daughter. This is because the complainant had the right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) against these decisions, and it was reasonable for her to use that right.

The complaint

1. The complainant, Mrs X, complains that the Council unreasonably denied her requests for specialist educational provision for her daughter.

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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. 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)
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 Tribunal in this decision statement.
5. 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)

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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. Mrs X’s daughter has special educational needs and has had an Education Health and Care (EHC) plan since 2020. Mrs X complains that the Council unreasonably refused three requests for specialist educational provision for her, despite the fact that her school could not meet her needs.
9. Mrs X says the Council’s refusal to name an appropriate placement resulted in her daughter missing 18 months of education. She says the Council agreed to name a specialist placement one week before her appeal was due to be heard by the Tribunal. She contends that this decision should have been made much earlier than it was.
10. The Ombudsman will not investigate Mrs X’s complaint. We can express no view on the suitability or otherwise of an educational placement. Neither can we comment on a council’s decision to name, or not to name, a placement in an EHC plan. This is because this is a matter which carries the right to appeal to the Tribunal.
11. Where a right to appeal exists, the Ombudsman normally expects it to be used. It would have been reasonable for Mrs X to use her right of appeal when the Council refused her requests to change the placement named in her daughter’s EHC plan, and the Ombudsman will not therefore investigate these decisions.
12. The fact that Mrs X did appeal against the school named in the EHC plan issued in November 2023 places the matter outside our jurisdiction. By law, we cannot consider the content of the EHC plan, or the Council’s subsequent actions before the appeal process concluded. This is the case even though the matter did not proceed to a hearing. There is no discretion available to us.

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Final decision

13. We will not investigate Mrs X’s complaint because the decisions about which she complains carried the right to appeal to the Tribunal and it was reasonable for her to use that right.

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Investigator's decision on behalf of the Ombudsman