Summary: We will not investigate Mr X’s complaint about the Council’s actions during his child’s Education, Health and Care (EHC) Plan annual review and the content of the final amended EHC Plan. This is because Mr X has a right of appeal to a tribunal about the content of the amended EHC Plan and it is reasonable for him to use it. A complaint about the Council’s actions during the annual review process is connected to and could form part of an appeal, so we cannot investigate this.

The complaint

1. Mr X complained about the Council’s consultation with and consideration of suitable schools during the Education, Health and Care review process regarding his child, Y. Mr X says the Council named a school in section I that was unsuitable.
2. Mr X says the matter will impact on Y’s education and has caused him frustration.

Back to top

The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
5. The courts have established that if someone has appealed (or could have) appealed to a tribunal, we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
6. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).
7. 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.

Back to top

How I considered this complaint

8. I considered information provided by the complainant.
9. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

10. Mr X has a child, Y, who has an Education, Health and Care Plan.
11. The Council reviewed Y’s EHC Plan and named a school, school A, in section I of the EHC Plan to start September 2024.
12. In late May 2024 Mr X complained to the Council. He said:
• it failed to conduct a proper consultation regarding the named educational placement;
• it had named school A without considering all the information available;
• school A was unsuitable to meet Y’s needs; and
• he was told to appeal the decision to the SEND Tribunal but said this would be a waste of time because the decision was clearly wrong.
13. The Council responded and told Mr X it would not consider his complaint because he had a right to appeal the decision to the SEND Tribunal.
14. Mr X brought his complaint to the Ombudsman. Mr X said the Council later agreed to review the named school in section I because it agreed school A was not suitable. Mr X said the Council was consulting with other schools and so he did not need to appeal the content of the EHC Plan to the SEND Tribunal.

Analysis

15. We will not investigate this complaint. The consequence of Mr X’s alleged fault is that the EHC Plan does not reflect his child’s needs. Mr X has a right of appeal to the SEND Tribunal if he disagrees with the content of the amended EHC Plan and it is reasonable for him to use this. The Ombudsman cannot direct changes to the content of the EHC Plan. Only the Council or Tribunal can do this.
16. While Mr X says the Council later agreed school A is unsuitable and is in the process of consulting with other schools, the Council may change its mind or not amend the EHC Plan. Therefore, while the Council is in the process of consulting with other schools, it is reasonable to expect Mr X to use his right of appeal.
17. The Council’s actions during the annual review process including its consultations and consideration of evidence are connected to matters which could form part of an appeal and so we cannot investigate those matters.

Back to top

Final decision

18. We will not investigate Mr X’s complaint because he has a right of appeal to a tribunal about the content of the final EHC Plan and it is reasonable for him to use it. We cannot investigate the Council’s actions during the annual review process as this is connected to and could form part of an appeal.

Back to top

Investigator's decision on behalf of the Ombudsman