The Ombudsman's final decision
Summary: We will not investigate Mrs X’s complaint about how the Council handled a review of her daughter’s Education Health and Care Plan. This is because it was reasonable for her to have used her right of appeal to the SEND Tribunal.
The complaint
Mrs X complains that the Council delayed reviewing her daughter’s Education Health and Care (EHC) Plan and then failed to name a school that could meet her daughter’s needs.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended, section 34(B)) 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
I will not investigate Mrs X’s complaint that the Council has failed to name a school that can meet her daughter’s needs in her EHC Plan. This is because it is reasonable to expect Mrs X to have used her right of appeal against the contents of the EHC Plan to the SEND Tribunal. Only the Tribunal can order the Council to make the changes to the EHC Plan that Mrs X seeks.
I will not investigate Mrs X’s complaint that the Council delayed carrying out an annual review of her daughter’s EHC Plan. This is because the Council apologised for the delay and I do not consider there to be any remaining injustice significant enough to warrant investigation.
Final decision
We will not investigate Mrs X’s complaint because it is reasonable to expect her to have used her right of appeal to the SEND Tribunal.
Investigator's decision on behalf of the Ombudsman