Summary: We will not investigate this complaint that the Council was at fault in the process of reviewing a young person’s special educational needs and amending his Education Health and Care Plan. This is because it would have been reasonable for the complainants to use their right to appeal to the First-tier Tribunal (Special Educational Needs and Disability).

The complaint

1. The complainants, who I will refer to as Ms X and Mr Y, complain that the Council was at fault in the process of reviewing Mr Y’s special educational needs and amending his Education Health and Care Plan (EHCP).

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. 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)
4. 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.

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How I considered this complaint

5. I considered information provided by the complainant.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Ms X is Mr Y’s mother. Ms X and Mr Y complain that the process of reviewing Mr Y’s special educational needs was flawed. Specifically, they complain that the Council’s case review panel made its decision having misunderstood the information before it, and without considering relevant matters. They contend that the panel failed to obtain Mr Y's views and failed to allow Ms X to provide information.
8. Ms X and Mr Y say that, as a result of the fault they have identified, the amended EHCP was flawed. They say provision ceased abruptly, which had a negative impact on Mr Y’s education and Ms X’s employment.
9. The Ombudsman will not investigate Ms X and Mr Y’s complaint. This is because they had the right to appeal to the SEND Tribunal. Where appeal rights exist, the Ombudsman usually expects them to be used. The key consequence of the alleged fault in the assessment was the content of the EHCP. This matter is appealable, and it would have been reasonable for Ms X and Mr Y to have done so.
10. The availability of appeal rights also means we will not consider whether the content of the ECHP led to the failure to make educational provision and the subsequent impact on Mrs X and Mr Y. The courts have established that if someone has lodged an appeal to the SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters subject to appeal.
11. This means that if a person disagrees with the placement named in an EHCP, we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the placement. This restriction would apply to an appeal made by Ms X and Mr Y and it is not therefore appropriate for us to investigate matters which occurred after appeal rights became available.

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Final decision

12. We will not investigate Ms X and Mr Y’s complaint because it would have been reasonable for them to use their right to appeal to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman