Summary: We will not investigate Miss X’s complaints about the Council’s provision of education to her son and its data handling. This is because we cannot investigate matters linked to Miss X’s Tribunal appeal or where Miss X has started court action. And because the Information Commissioner is the suitable body to consider the data protection complaint.

The complaint

1. Miss X complains the Council:
• Has delayed actioning a Tribunal order to amend and issue a new Education Health and Care Plan (“EHCP”) for her son;
• Did not provide alternative provision for her son when his school place broke down;
• Managed her son’s case poorly;
• Breached her confidentiality;
• Did not ensure its Tribunal officer conducted themselves properly.
2. Miss X says her and her son have suffered distress, poor mental health and financial strain due to the Council’s failings.

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The Ombudsman’s role and powers

3. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)
4. The courts reconfirmed we cannot investigate a decision where it has been or could reasonably be appealed to a tribunal. The courts also said we cannot consider the consequences of that decision. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
5. The courts have said we can decide not to investigate a complaint about any action by a council concerning a matter which is outside our jurisdiction. (R (on the application of M) v Commissioner for Local Administration [2006] EHWCC 2847 (Admin))
6. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

7. I considered information provided by Miss X and the Council.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. Miss X appealed to the SEND Tribunal about her son’s Education Health and Care Plan (“EHCP”), including the content, provision and placement. The Tribunal issued an order for the Council to amend and issue a new EHCP in April 2023.
10. We cannot investigate Miss X’s complaint about alternative provision from January 2023 as any injustice is linked to the matters appealed at Tribunal.
11. It is not a good use of public resources to investigate complaints about the Council’s actions when we cannot investigate the substantive issue. We cannot investigate matters appealed at Tribunal. Therefore, I will not investigate Miss X’s complaints about the Council’s poor management of her son’s case or its officer conduct.
12. Miss X says she has started judicial review proceedings about the Council’s delay actioning the Tribunal order. We cannot investigate where someone has started court action.
13. I will not investigate Miss X’s complaint the Council breached her confidentiality as the Information Commissioner is the more suitable body to consider such complaints.

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Final decision

14. We will not investigate Miss X’s complaint because we cannot investigate matters linked to Miss X’s Tribunal appeal or where Miss X has started court action. And because the Information Commissioner is the suitable body to consider data protection complaints.

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Investigator's decision on behalf of the Ombudsman