Summary: We will not investigate Mrs X’s complaint about the Education Health and Care Plan (EHC Plan) process for her son. Mrs X has appealed to a tribunal which places much of the case outside our jurisdiction. It is reasonable for Mrs X to submit a further appeal if she wants to challenge the content of her son’s EHC Plan.

The complaint

1. The complainant, Mrs X, complained about the Education Health and Care Plan process for her son. Mrs X complained about the Council’s decisions not to assess and issue her son with an EHC Plan. The Council has now issued an EHC Plan, but Mrs X is unhappy with its content.

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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. 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)

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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 Council’s decisions not to assess and to issue her son with an EHC Plan. When an appeal has been made, the Ombudsman has no jurisdiction to consider related matters from the point at which the appeal rights were engaged to the point at which the SEND Tribunal issued its decision. The courts have held we cannot investigate any matters closely linked to the matters under appeal. The decisions themselves are therefore outside our jurisdiction, as is the decision-making process. We are also barred from looking at the Council’s conduct during the appeals process. We therefore have no jurisdiction to consider Mrs X’s complaints where she has appealed to the SEND Tribunal.
10. Any concerns Mrs X has about the content of her son’s EHC Plan are also not for the Ombudsman. This is because Mrs X can appeal its content to the SEND Tribunal. It is the mechanism set up by Parliament for parents to challenge the content of EHC Plans. The Tribunal can decide if the EHC Plan should be changed. We have no powers to do this. The SEND Tribunal can give Mrs X the outcome she wants, and so it is reasonable for her to appeal.

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Final decision

11. We will not investigate Mrs X’s complaint because she has appealed to a tribunal, and it is reasonable for Mrs X to submit a further appeal.

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Investigator's decision on behalf of the Ombudsman