Summary: We will not investigate this complaint about how the Council carried out a review of a child’s Education Health and Care plan. This is because the complainant has used their right of appeal to a tribunal.

The complaint

1. Miss X complains about how the Council has dealt with matters concerning her child’s education. Miss X says that the Council’s final Education Health and Care (EHC) plan was inadequate and that insufficient assessments were requested. As a result, Miss X says her son’s education suffered and she had to pay for private assessments and tuition.

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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 about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
4. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal…such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.
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.

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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. The Council carried out a review of Miss X’s child’s EHC plan and issued a final amended plan in February 2022. Miss X appealed the contents of the plan, including the school named. In December 2022, the appeal was ended by consent order and the Council issued an amended final plan.
9. I cannot investigate the contents of the EHC plan issued in February 2022. This is because Miss X appealed to the SEND Tribunal about this and therefore this falls outside of our jurisdiction.
10. I cannot investigate Miss X’s complaint about what assessments the Council requested as part of its assessment. This is because this matter is not separable from the appeal itself. This is because any injustice caused by the Council’s failure to arrange an assessment is that the EHC plan did not meet her child’s needs, which was the subject of Miss X’s appeal. Furthermore, the Tribunal has powers to order reports are completed if it wishes. For these reasons, the Ombudsman cannot recommend that the Council reimburses Miss X for the costs of private reports she arranged.
11. I cannot investigate Miss X’s complaint that the Council refused to reimburse her for tuition fees. Miss X says she had to arrange private tuition due to the Council’s failings during the EHC process. However, we cannot investigate this or recommend that the Council reimburse fees Miss X paid for tuition as this injustice relates to Miss X’s view that the EHC plan was insufficient and it is therefore not separable from her appeal to the SEND Tribunal.

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Final decision

12. We will not investigate Miss X’s complaint because she has used her right of appeal to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman