The Ombudsman's final decision
Summary: We will not investigate Mrs X’s complaint about the content of her child’s Education, Health and Care Plan. This is because it was reasonable for Mrs X to appeal to the First Tier Tribunal (Special Educational Needs and Disability).
The complaint
The complainant, whom I shall refer to as Mrs X, complained about the content of her child’s Education, Health and Care Plan (EHC Plan). The Council has named a school, but Mrs X wants the Council to name a designated unit which is located within the 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 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 Tribunal in this decision statement.
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
We will not start an investigation into Mrs X’s complaint.
Mrs X is unhappy with the content of her child’s EHC Plan. Parents who want to challenge the content of an EHC Plan have a right of appeal to the Tribunal. It is the mechanism set up by Parliament for parents to challenge such decision. We expect parents to use their right of appeal unless it would be unreasonable for them to do so. In this case the right of appeal was available when the Council issued the EHC Plan. An appeal 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.
Final decision
We will not investigate Mrs X’s complaint because it is about a matter she could have appealed.
Investigator's decision on behalf of the Ombudsman