Summary: We will not investigate this complaint about the Council’s response to the complainant’s request for specialist educational provision for her daughter. This is because it would have been reasonable for her to use her right to appeal against the decision to refuse her request.

The complaint

1. The complainant, who I will refer to as Mrs X, complains that the Council’s response to her request for specialist educational provision for her daughter was unreasonable.

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The Ombudsman’s role and powers

2. 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)
3. 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

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

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My assessment

6. Mrs X’s daughter has special educational needs and an Education Health and Care Plan (EHCP). The EHCP currently names a mainstream school. Mrs X believes this is not an appropriate setting for her daughter.
7. The EHCP was reviewed in November 2022. Mrs X requested that the Council agree a place for her daughter at a specialist school. Her complaint relates to the way the Council has responded to that request.
8. The evidence Mrs X has provided shows that the decision to refuse her request was made in January 2023 by the Council’s Special Educational Needs Decision Making Group (DMG). Mrs X contends that the Council has failed to explain how the DMG reached its decision and, specifically, why it took the view that a mainstream setting could meet her daughter’s needs. She believes the decision-making process was flawed.
9. The Ombudsman will not investigate Mrs X’s complaint. It is not for us to question the decision to name a specific school, or type of school, in the EHCP. This is because this decision carries the right to appeal to the SEND Tribunal. Where appeal rights exist, the Ombudsman normally expects them to be used. An appeal to the SEND Tribunal is the appropriate route to challenge the decision. Alleged flaws in how the decision was made are not separable from the decision itself and the Ombudsman will not intervene.

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Final decision

10. We will not investigate Mrs X’s complaint because it would have been reasonable for her to use her right to appeal to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman