Summary: We cannot investigate Miss X’s complaint about the school named in an Education Health and Care Plan because she has appealed to the Tribunal.

The complaint

1. Miss X says the Council has named the wrong setting in an Education Health and Care Plan (EHC Plan) for her child Y.

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The Ombudsman’s role and powers

2. 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.
3. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)

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How I considered this complaint

4. I considered information provided by Miss X which included the Council’s reply to her.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Y has additional needs. The Council assessed Y’s needs and produced an EHC Plan. A child or young person with special educational needs may have an EHC Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the Tribunal or the Council can do this. 
7. Miss X says the EHC Plan names the wrong school. She says the school named cannot meet Y’s needs. She says the school has confirmed this. She says she will not send Y to the named school as it cannot meet their needs.
8. Miss X has appealed the EHC Plan to the Tribunal. She says if the Council had carried out its assessment properly the EHC Plan would name a different setting and she would not need to appeal.
9. We cannot investigate why the Council named the school in the EHC Plan because she has appealed to the Tribunal. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207).

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Final decision

10. We cannot investigate Miss X’s complaint because she has appealed to the Tribunal.

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Investigator's decision on behalf of the Ombudsman