Summary: We cannot investigate this complaint that the Council refused to reimburse the complainant for costs associated with her appeal to the SEND Tribunal. This is because we cannot consider matters that a tribunal has considered or could have considered.

The complaint

1. Mrs X complains that the Council refused to reimburse her for the cost of expert witnesses who she paid to give evidence in her appeal to the SEND Tribunal against the Council’s decision not to issue an Education Health and Care (EHC) plan.

Back to top

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 courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)

Back to top

How I considered this complaint

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

Back to top

My assessment

7. Mrs X complaint is that the Council has refused to reimburse her for costs associated with her tribunal appeal. We cannot investigate any action which would overlap with the role of the Tribunal. The Tribunal has wide ranging powers, including the ability to award costs to either party as it sees fit during the tribunal process. Ms X could have asked the Tribunal to consider an award for costs during the Tribunal process, so we cannot investigate this.

Back to top

Final decision

8. We cannot investigate Mrs X’s complaint because it concerns matters that have, or could have, been considered by the SEND Tribunal.

Back to top

Investigator's decision on behalf of the Ombudsman