Summary: We will not investigate this complaint about the Council’s decision not to issue Mrs X’s child with an Education, Health and Care Plan. This is because the case is outside our jurisdiction.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complained about the Council’s decision not to issue her child with an Education, Health and Care Plan (EHC Plan). Mrs X is unhappy with the Educational Psychology report produced as part of the assessment which led to the Council’s decision.

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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. 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)
5. 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.

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How I considered this complaint

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

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My assessment

8. We will not start an investigation into Mrs X’s complaint.
9. Parents who are unhappy with a council’s decision not to issue their child with 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 a council has reached a decision, including reports relied on, and say if the Council’s decision should be changed. We generally expect parents to use this right unless it is unreasonable for them to do so. The SEND Tribunal can give Mrs X the outcome she wants and so we will not investigate.
10. Once an appeal right has been used, we have no powers to consider any matter closely linked to the matter appealed. In this case that includes the decision not to issue an EHC Plan and the way in which the decision was reached – such as the Educational Psychologist report. An appeal effectively places the entire complaint outside our jurisdiction with no discretion in the matter.

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Final decision

11. We will not investigate Mrs X’s complaint because it is outside our jurisdiction.

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Investigator's decision on behalf of the Ombudsman