• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• My assessment
• Final decision

The Ombudsman's final decision:

Summary: We will not investigate this complaint about the content of an Education Health and Care Plan and the Council’s conduct during the appeal process. This is because Mrs X has used her right of appeal. The matter is therefore outside the Ombudsman’s jurisdiction.

The complaint

1. The complainant, Mrs X, is unhappy with the content of her child’s Education Health and Care Plan. Mrs X has appealed to the SEND Tribunal and is unhappy with the Council’s conduct during the appeal. She says it has not followed the proper process and has failed to communicate with her.

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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. 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.
5. 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

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

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My assessment

8. We will not start an investigation into Mrs X’s complaint.
9. Mrs X has used her right of appeal to the SEND Tribunal. Because of this we have no jurisdiction to consider Mrs X's complaint. The Courts have held that this restriction applies to anything related to the appeal.
10. The way the Council conducted itself and the information it provided during the Tribunal process is not therefore something we can consider. It is a matter for the Tribunal. The Tribunal can make case management directions, has powers to deal with non-compliance, and can make cost orders. There is no discretion available to us about this matter.

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Final decision

11. We will not investigate Mrs X’s complaint. This is because she has used her right of appeal to the Tribunal and the complaint is therefore outside our jurisdiction.

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Investigator's decision on behalf of the Ombudsman

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