Summary: We will not investigate Miss X’s complaint about the Council’s decision not to issue her son with an Education Health and Care Plan. The is because it is reasonable for Miss X to use her right of appeal to a tribunal.

The complaint

1. The complainant, whom I shall refer to as Miss X, complained the Council has refused to issue her son with an Education Health and Care Plan (EHC Plan).

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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.
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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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. We will not investigate Miss X’s complaint.
8. Parents unhappy with a council’s decision not to issue an EHC Plan can appeal to the SEND Tribunal. We expect people to use this right unless we consider it unreasonable for them to do so. The Tribunal can say if the Council should issue an EHC Plan. We have no powers to do this. The Tribunal can give Miss X the outcome she wants. An investigation by the Ombudsman cannot. I see no reason Miss X should not use the appeal rights available to her and so we will not investigate.
9. Miss X is also unhappy about previous decisions not to issue her son with an EHC Plan. But the Council took those decisions more than 12 months ago and so the exception at paragraph 4 applies. These issues are late. But even if this was not the case, we would not investigate. This is because Miss X had the right to appeal those decisions to the SEND Tribunal and it was reasonable for her to do so.

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Final decision

10. We will not investigate Miss X’s complaint because it is reasonable for Miss X to appeal to a tribunal.

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Investigator's decision on behalf of the Ombudsman