Summary: I have discontinued my investigation because Mr X has asked a Tribunal to consider a remedy for the same injustice that he has asked the Ombudsman to consider. Section 26(6)(a) of the Local Government Act 1974 says we have no jurisdiction to investigate where someone has used a right of appeal, reference or review to a Tribunal about the same matter.

The complaint

1. Mr X complains the Council has failed to secure special educational provision in his son’s Education, Health and Care (EHC) plan, in breach of section 42 of Children and Families Act 2014 (‘the Act’), since September 2022.
2. Mr X says his son has lost education, become socially isolated and there has been an adverse impact on his son’s mental health.
3. Mr X wants the Council to:
• Secure the provision;
• Remedy injustice to him and his child;
• Review procedures with regard to s.42 The Act;
• The Monitoring Officer to conduct a review.

Back to top

The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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.
• We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
• We cannot trespass in any way on the jurisdiction of the Tribunal. (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207).
• The lack of an available financial remedy from the Tribunal does not mean the Ombudsman is empowered to investigate. The Court has noted that while this creates a situation where loss has been suffered and no remedy for the loss will be provided, Parliament must have contemplated that such situations would arise when it set out the Ombudsman’s powers. (R v the Commissioner for Local Administration ex parte PH, 1999)
6. We can decide whether to start or discontinue an investigation into a complaint. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

Back to top

How I considered this complaint

7. I have considered information provided by Mr X and the Council including:
• The EHC plan and associated education records;
• Tribunal documents;
• Complaint documents.
8. I have also spoken to Mr X by telephone.
9. Mr X and the Council had an opportunity to comment on my draft decision. No comments were received.

Back to top

What I found

Relevant law and guidance

10. 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.
11. The Council is responsible for making sure that specified special educational provision in an EHC plan is put in place. We can sometimes look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process. However, where there has been an appeal to a Tribunal, we cannot investigate if the Tribunal has been asked to look at the same matter, or if an investigation would lead us to trespass on the jurisdiction of the Tribunal.
12. There is no duty under the Act 2014 for Councils to provide social care services in an EHC plan. Council responsibilities instead fall under existing social care legislation.
13. An EHC plan is set out in sections including:
• Section F – special educational provision
• Section G – health provision
• Section H – social care provision.
14. Section H is sub-divided into:
• H1 – social care provision which must be made for a child or young person under section 2 Chronically Sick and Disabled Person’s Act 1970, and
• H2 – any other social care provision reasonably required by the learning difficulties or disabilities which result in the child or young person having special educational needs.

Factual background

15. Mr X’s son has had an EHC plan since 2018. Mr X told me his son had missed a lot of education over recent years as several education placements had broken down.
16. The Council agreed to reassess Mr X’s son’s needs in January 2022. Mr X says the Council failed to seek relevant advice from the education setting or from an Educational Psychologist before issuing an amended final plan in October 2022.
17. Mr X previously complained to the Ombudsman about the failure to seek appropriate advice and we issued a final decision statement.
18. The October 2022 EHC plan said Mr X’s son would receive Education Otherwise than at School (EOTAS) as his placement.
19. Mr X had a right of appeal if he was dissatisfied with the contents of the October 2022 EHC plan. Mr X exercised this right, lodging an appeal with the SEND Tribunal. The hearing is due to be heard in Autumn 2023. It is an extended appeal covering Sections B (needs), F (special educational provision), G (Health provision) and H (social care provision) of the EHC plan.
20. Mr X’s appeal document was provided to me by the Council and gives his grounds of appeal as:
• The Council’s failure to seek appropriate advice for the reassessment that took place in 2022.
• His son has had little education since 2017 and suffered years of isolation from peers.
• The Council issued an EHC plan in 2018 but provision has never been made.
• The consequent gaps in education have not been assessed and so provision is unlikely to meet those needs.
• The Council has not considered the cumulative effect of loss of education and isolation from peers for the last five years.
• Social care needs resulting from loss of education and social isolation have not been addressed in the EHC plan.
21. Social care has been involved. An assessment was completed in response to the Tribunal appeal being extended to include social care matters. The case is currently held by Early Help as the assessment found the criteria for support under Section 2 Chronically Sick and Disabled Persons Act 1970 was not met. In addition, the EHC plan includes therapy sessions in Section H2.
22. Mr X asked the Tribunal to withdraw his appeal, but the Tribunal refused to do so and the extended appeal is due to be heard this Autumn.

Relevant law

23. Our jurisdiction is set out in the Local Government Act 1974 and in caselaw.
24. Section 26(6(a) says we cannot conduct an investigation in respect of any action in which the person affected has or had a right of appeal, reference or review to or before a tribunal.
25. Where someone has used a right of appeal, reference or review to a Tribunal, we have no discretion to investigate, it is an absolute bar.
26. Sometimes we can investigate loss of provision in an EHC plan, during the appeal period, even though someone has asked the Tribunal to consider amending the plan and adding additional provision. However, we must be able to separate this from the matter being appealed and not trespass on the jurisdiction of the tribunal in any way.

Analysis

27. I do not consider Mr X’s complaint can be separated from his appeal. Mr X has asked us to consider past loss of education and social care provision and to provide a remedy for this loss. Mr X’s appeal grounds refers to loss of provision over many years and refers to the provision detailed in the EHC plan not taking into account gaps in education or cumulative effect of past loss of education. Mr X is asking the Tribunal to consider adding provision to the EHC plan to make up for lost provision. This is essentially the same loss and remedy that Mr X is asking the Ombudsman to consider. As Mr X has used an alternative legal remedy for the same alleged loss, the Ombudsman has no jurisdiction to investigate.

Back to top

Final decision

28. I have discontinued my investigation as we have no jurisdiction to consider Mr X’s complaint due to him raising the same matters as part of his appeal to the SEND Tribunal.

Back to top

Investigator's decision on behalf of the Ombudsman