The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s decision not to issue Miss X’s daughter with an Education Health and Care Plan. This is because it is reasonable for Miss X to appeal to the SEND Tribunal.
The complaint
Miss X complained about the Council’s decision not to issue her daughter with an Education Health and Care Plan (EHCP). Miss X wants her daughter to attend a school for children with special educational needs. She is concerned about the level of support provided by her daughter’s current school.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
The law says we cannot normally investigate a complaint when someone can appeal to a tribunal.
However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended) 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.
We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Miss X has asked the Council to assess her daughter and prepare an EHCP. The Council has decided not to issue an EHCP. Miss X disagrees with the Council’s decision.
As explained in paragraph 3, we will not normally investigate a complaint where someone can appeal to a court or tribunal about the same matter. We have discretion to set aside this rule where we decide there are good reasons. We will not do that here because: It is reasonable to expect Miss X to appeal to the SEND Tribunal; and there are no good reasons why appealing to the Tribunal is not suitable.
An appeal to the Tribunal can give Miss X the outcome she wants. The Ombudsman cannot. We also have no powers to consider what happens in schools. We will not therefore investigate.
Final decision
We will not investigate this complaint because it is reasonable for Miss X to appeal to the SEND Tribunal.
Investigator's decision on behalf of the Ombudsman