Summary: We will not investigate this complaint about the school named in an Education, Health and Care Plan. This is because it was reasonable for Mrs X to use her right of appeal to the First-tier Tribunal (Special Educational Needs and Disability).

The complaint

1. The complainant, whom I shall refer to as Mrs X, complained about the school named in her son’s Education, Health and Care Plan (EHC Plan). Mrs X says the Council named an inappropriate mainstream school, rather than a special school, which said it could offer her son a place.

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. 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 SEND Tribunal in this decision statement.

Back to top

How I considered this complaint

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

Back to top

My assessment

7. We will not start an investigation into Mrs X’s complaint.
8. Parents who are unhappy with the content of an EHC Plan have a right of appeal to the SEND Tribunal. It is the mechanism set up by Parliament for parents to challenge such decisions. The SEND Tribunal can consider how the content of an EHC Plan was decided and if it should be changed. This is not a decision we can take. An appeal to the Tribunal could have given Mrs X the outcome she wants. An investigation by the Ombudsman could not. It was therefore reasonable for Mrs X to appeal and so we will not investigate. The process the Council followed to decide the content of the EHC Plan is closely linked to the matter it was reasonable for Mrs X to appeal. We will not therefore consider it in isolation.
9. Once the Council has completed a review of her son’s EHC Plan there will be a fresh right of appeal. It is reasonable for Mrs X to use this if she remains unhappy with the content of the EHC Plan.

Back to top

Final decision

10. We will not investigate this complaint because it was reasonable for Mrs X to use her right of appeal to the SEND Tribunal.

Back to top

Investigator's decision on behalf of the Ombudsman