Summary: We will not investigate Ms X’s complaint about the education provided to her daughter and the content of their Education, Health and Care Plan. This is because Ms X has used her right of appeal and so the complaint is outside our jurisdiction.

The complaint

1. The complainant, Ms X, disagreed with the content of her daughter’s Education, Health and Care Plan (EHC Plan). Ms X said her daughter was not receiving an appropriate education and so she appealed to a tribunal. Ms X is unhappy with the Council’s conduct during the appeals process.

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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. 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. 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) 

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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 Ms X’s complaint. This is because Ms X has appealed to the SEND Tribunal. 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.
10. The courts have held we cannot investigate any matters closely linked to the matters under appeal. The content of the EHC Plan and the suitability of the education provided to Ms X’s daughter are therefore outside our jurisdiction with no discretion available to us.
11. We are also barred from looking at the Council’s conduct during the appeal and information it provided to the Tribunal. The way the Council conducted itself during the appeal is instead a matter for the Tribunal. It can make case management directions, has powers to deal with non-compliance, and can make costs orders. We therefore have no jurisdiction to consider Ms X’s complaint.

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Final decision

12. We will not investigate Ms X’s complaint because she has appealed to a tribunal. The case is therefore outside our jurisdiction.

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Investigator's decision on behalf of the Ombudsman