Summary: We cannot investigate Mr B’s complaint the Council failed properly to conduct a Children and Family assessment as ordered by the First-tier Tribunal. This is because Mr B has already used a right of appeal to a statutory tribunal to resolve the matter complained of, and we have no discretion to investigate.

The complaint

1. Mr B says the Council failed properly to conduct a Children and Family assessment as ordered by the First-tier Tribunal (Health Education and Social Care Chamber) as part of his appeal against an Education Health and Care Plan (EHCP) for his son, S.

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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. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
4. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law or tribunal. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

5. I considered what Mr B said in his complaint and documents about his appeal to tribunal.

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What I found

6. Mr B appealed to the First-tier Tribunal, which ordered a Children and Family assessment for S in March 2020. The Council completed it in July 2020. Mr B complained about it in August 2020, before the Tribunal had finished considering or decided his appeal. He said the assessment would prejudice the appeal hearing and any assessment of continuing care for which he said his son was then eligible.
7. The Tribunal was considering an appeal against the content of S’s EHCP, and the evidence before it included a detailed working document around S’s needs and education, health and social care provision. The issue in this complaint, the Council’s assessment, is therefore about a matter which was squarely before the Tribunal and key to its decisions. It would have been reasonable for Mr B to challenge the information in the Council’s assessment, and in the working document the Tribunal used, through the Tribunal's proceedings.
8. Mr B’s complaint to the Council and then the Ombudsman, to address matters which were central to the Tribunal proceedings, amounts to a duplication of process. The same underlying questions would be at issue in both. This is not something the law envisages or provides for.
9. I understand the Tribunal is reconsidering some matters, but if the Council does not implement the Tribunal’s recommendations once finalised, it is open to Mr B to complain to us afresh about any failure to provide services in accordance with the eventual EHCP. That does not extend, however, to an attempt to continue to dispute any of the matters in, or which informed the Tribunal’s decisions and recommendations.

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Final decision

10. We cannot investigate this complaint because Mr B has already used a right of appeal to a statutory tribunal to resolve the matter complained of.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman