The Ombudsman's final decision
Summary: We will not investigate this complaint that the Council has declined to consult the schools of the complainant’s choice when considering which placement to name in her child’s Education Health and Care Plan. This is because it would be reasonable for the complainant to use her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability).
The complaint
The complainant, who I will refer to as Ms X, complains that the Council has refused to consult the schools of her choice when considering which placement to name on her child’s 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 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) 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.
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
Ms X’s child has special educational needs and an EHC Plan. Ms X says that, in the course of amending the EHC Plan, the Council has refused to consult the only two schools which can meet her child’s needs.
In its response to Ms X’s complaint in relation to one of the schools, the Council has explained that it cannot name the school because it is not approved by the Secretary of State for Education for the purpose. Ms X believes it should still be consulted.
The educational settings which can be consulted when an EHC Plan is being written are set out in law. If schools are not approved by the Secretary of State, they cannot be named on an EHC Plan, and a Council would not be at fault for declining to consult them.
The Ombudsman cannot ask for a particular school to be named. Ms X has the right to appeal to the SEND Tribunal about the school or other setting named in Section I of her child’s EHC Plan. Where appeal rights exist, the Ombudsman expects them to be used. It would be reasonable for Ms X to use her right to appeal.
Final decision
We will not investigate Ms X’s complaint because it concerns a matter about which it would be reasonable for her to use her right to appeal to the SEND Tribunal.
Investigator's decision on behalf of the Ombudsman