The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s decision not to provide Mrs X a personal budget for provision for her child’s special educational needs. The provision Mrs X requests a personal budget for is not included in the Education Health and Care plan. Disagreements about educational provision are for the Special Educational Needs and Disability Tribunal.
The complaint
Mrs X complained about the Council’s decision not to provide a personal budget for specialist support she had arranged for her child, W. She said she paid £200 a fortnight for this support.
Mrs X wants the Council to reimburse her for the sessions she has arranged since April 2022. She also wants the Council to provide a personal budget whilst W has an Education Health and Care plan (EHC plan).
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 about the same matter. 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.
The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
The Council issued W’s EHC plan in November 2021. Mrs X disagreed with the educational provision specified in section F of the EHC plan and appealed to the SEND Tribunal. Following the SEND Tribunal, the Council issued an amended final EHC plan. That included the provision that was agreed through the SEND Tribunal process.
The initial EHC plan, and the EHC plan issued after the SEND Tribunal do not include the support Mrs X is arranging. As the support is not included in the EHC plan as special educational provision the Council is not under a duty to provide W this support. If Mrs X wanted this provision specified in the EHC plan, that would have been a matter for the SEND Tribunal. Therefore, we will not investigate as it was reasonable for Mrs X to raise this matter in the SEND Tribunal.
Although the SEND Tribunal will not hear appeals about personal budgets, it will hear appeals about the educational provision to which a personal budget may apply. We can only consider disagreements about personal budgets after the provision is secured in the EHC plan.
Final decision
We will not investigate Mrs X’s complaint because the SEND Tribunal deals with disagreements about provision in Education Health and Care plans.
Investigator's decision on behalf of the Ombudsman