Summary: We cannot investigate this complaint about the Council’s response to an appeal to a Tribunal. This is because the fact that the complainant appealed places the matter outside the Ombudsman’s jurisdiction.

The complaint

1. The complainant, who I will refer to as Mrs B, complains that the Council was at fault in its response to her appeal about the content of her son’s Education Health and Care Plan (EHCP), and in delaying arranging provision once the process concluded.

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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. We cannot investigate a complaint if someone has appealed to a tribunal. (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. The Courts have said that we cannot investigate a complaint about any action by a council, concerning a matter which is itself out of our jurisdiction. (R (on the application of M) v Commissioner for Local Administration [2006] EHWCC 2847 (Admin))

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How I considered this complaint

5. I considered information provided by the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Mrs B’s son has special educational needs. The Council issued and EHCP in February 2021. In April 2021 Mrs B appealed to the SEND Tribunal.
8. Mrs B says the Council’s response to the appeal was obstructive and unreasonable. She says that, as a result, her son was denied educational provision to which he was entitled, and she was forced to incur unnecessary expense in engaging a parental advocate and a solicitor.
9. Mrs B also complains that the Council unreasonably delayed making a school place available once it conceded on the issue of her son’s future placement. The Council argues that it was not required to arrange the provision until it received the SEND Tribunal’s direction and, once it did so, it made a place available within the appropriate timescale.
10. The Ombudsman cannot investigate Mrs B’s complaint because she has appealed to the SEND Tribunal. When an appeal has been made, the Ombudsman has no jurisdiction to consider related matters from the point at which appeal rights were engaged to the point at which the SEND Tribunal issues its decision. The Courts have held that this restriction applies to anything related to the matters at issue in the appeal. We cannot investigate the conduct of the parties, the information provided to the Tribunal or the provision made in the interim.
11. Mrs B’s appeal rights were engaged in February 2021 and the SEND Tribunal issued its decision in October 2021. Matters between those dates fall outside the Ombudsman’s jurisdiction. There is no discretion available to us. The evidence indicates that Mrs B’s son’s new school place was available to him from November 2021. There are therefore no grounds for us to investigate the complaint

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Final decision

12. We cannot investigate Mrs B’s complaint because she has used her right to appeal to a Tribunal.

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Investigator's decision on behalf of the Ombudsman