Summary: The Ombudsman will not investigate Mr X’s complaint about the Council’s conduct during a Tribunal appeal process and its action which Mr X says caused him to appeal. We cannot investigate as Mr X has used his appeal right.

The complaint

1. The complainant, whom I shall call Mr X, says the Council acted badly during a Tribunal appeal and before it issued an Education Health and Care plan.

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The Ombudsman’s role and powers

2. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
3. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
4. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. 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)

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How I considered this complaint

5. I considered the information Mr X provided with his complaint which included the Tribunal’s final order. Mr X had the opportunity to comment on this draft version.

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What I found

Background

6. Mr X has an eleven year old child with special educational needs. A child with special educational needs may have an Education, Health and Care (EHC) plan. This 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 education, or name a different school. Only the tribunal can do this.
7. The Council issued an EHC plan in February 2018. It then issued another one a year later, in February 2019, before the child’s transition to senior school. Mr X disagreed with the EHC plan wording and appealed to the Tribunal. It heard the case in July 2019 and upheld Mr X’s appeal.
8. Mr X says the Council should not have issued the EHC plan in its February 2019 form. He says that if the Council had carried out its duties properly it would have issued the EHC plan in the form the Tribunal ordered. He says the appeal was unnecessary. He says the officer involved in running the Council’s case refused to listen to his concerns or the evidence presented, and withheld information from him. He disagrees with the tactics the officer used to defend Mr X’s appeal. He says he felt bullied.

Analysis

9. We have no legal power to investigate the Tribunal appeal process. This means we cannot look at the case the Council presented, nor its tactics. The Council’s actions connected with the appeal, and the EHC plan preparation is not separable from the appeal.
10. The Tribunal allows for parents to claim costs within those proceedings if a party “acted unreasonably in bringing, defending or conducting the proceedings”. It is reasonable to expect Mr X to have used this process.
11. Mr X says if the Council had acted properly before the appeal, it would have issued a different EHC plan and the appeal would not have been necessary. The remedy for the EHC plan not being adequate is to appeal to SEND. Mr X did this.
12. Mr X says the Council has not replied to his complaint. We will not investigate this as it is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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Final decision

13. The Ombudsman will not investigate this complaint. This is because Mr X appealed to SEND and we cannot look at the Council’s conduct within those proceedings.

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Investigator's decision on behalf of the Ombudsman