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 there are further appeal rights available. The case is therefore 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 the Council refused her original request for an EHC Plan and the way the Council reached this decision. Mrs X says she had to appeal to the First-tier Tribunal (Special Educational Needs and Disability) and to commission her own reports at significant costs. The Council has now agreed to issue an EHC Plan. Mrs X is unhappy the Council will only consider its own reports in deciding the content of the EHC Plan.

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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) 
7. 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

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

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My assessment

10. We will not start an investigation into Mrs X’s complaint. This is because Mrs X appealed the decision not to issue her son with an EHC Plan to the SEND Tribunal. By law, this places the decision and any related matters outside our jurisdiction. This applies from the point the appeal rights were engaged. Any alleged failings in the decision-making process cannot be separated from the decision appealed. We are also barred from looking at the Council’s conduct during the appeals process. Costs incurred from obtaining professional reports are also outside our jurisdiction. This is because the Tribunal has powers to award costs as part of the appeal.
11. If Mrs X is unhappy with the content of her son’s EHC Plan and the Council’s decision-making, she can submit a fresh appeal to the SEND Tribunal. It is the mechanism set up by Parliament for parents to challenge such decisions. The Tribunal can decide if the Council should amend the EHC Plan. It can give Mrs X the outcome she wants. This is not something the Ombudsman can do. It is therefore reasonable for Mrs X to use her appeal rights.

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Final decision

12. We will not investigate Mrs X’s complaint because she has appealed to the SEND Tribunal. It is reasonable for Mrs X to submit a further appeal if she wants to challenge the content of her son’s EHC Plan.

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Investigator's decision on behalf of the Ombudsman