Summary: We will not investigate Mrs X’s complaint about the Education Health and Care Plan process for her son. This is because Mrs X appealed to a tribunal and so the case is outside our jurisdiction.

The complaint

1. The complainant, Mrs X, complained about the Education Health and Care Plan (EHC Plan) process for her son. Mrs X is unhappy with the school the Council named in the EHC Plan. Mrs X says this meant she had to appeal to the First-tier Tribunal (Special Educational Needs and Disability). Mrs X wants the Council to reimburse the costs she incurred during the appeal.

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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. 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. We cannot investigate the council’s conduct during an appeal. This includes anything a complainant could have raised with the tribunal at any stage of the appeal, or which the tribunal has considered on its own initiative, or which could have been a part of the tribunal’s deliberations in resolving the appeal (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)  
6. Some parents will incur significant legal and expert fees during the appeal process. We cannot investigate this as the tribunal has powers to consider and/or award costs as part of the appeal. (The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699, Rule 10) 

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How I considered this complaint

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

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My assessment

9. We will not start an investigation into Mrs X’s complaint. This is because Mrs X appealed the content of her son’s EHC Plan to the SEND Tribunal. By law, this places the content of the EHC Plan outside our jurisdiction. Any alleged failings in the decision-making process cannot be separated from the matter appealed. We are barred from looking at the Council’s conduct during the appeals process. We also cannot investigate the issue of costs incurred during the appeal. This is because the Tribunal has powers to award costs as part of the appeal.

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Final decision

10. We will not investigate Mrs X’s complaint because she has appealed to a tribunal.

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Investigator's decision on behalf of the Ombudsman