Summary: We cannot investigate Mr X’s complaint about interim education provision or the Council’s use of an Education Psychologist report. Mr X has used his right to appeal to the SEND Tribunal and these are matters which are linked to his appeal and can be considered there. We will not investigate his complaint about the Council’s use of its unreasonable customer policy. It is unlikely we would find fault.

The complaint

1. Mr X made several complaints about the way the Council handled an Education, Health, and Care (EHC) Plan for his child (Y). He said:
1. It failed to respond to his requests relating to an interim education provision;
2. it should refund his fee for a private Educational Psychologist (EP) report, and;
3. it’s use of the unreasonable customer policy was inappropriate.

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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. 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)
4. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

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

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My assessment

7. Mr X is the parent of Y. Y is an adult with Special Educational Needs and an EHC Plan. In 2023, the Council issued a final EHC Plan for Y and Mr X lodged an appeal with the SEND Tribunal.
8. Mr X subsequently complained about the Council’s approach to Y’s EHC Plan up until that point, and because it had restricted his contact with it under its unreasonable customer policy (c). And then in his complaint to us, Mr X raised the issues I have referred to at (a) and (b) in paragraph one.
9. Because Mr X has appealed to the SEND Tribunal about Y’s EHC Plan, we cannot investigate parts of his complaint.
10. In relation to interim provision, the courts have established that if someone has appealed to the SEND Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal.
11. This means that if a child is not attending an educational placement, and the reason for non-attendance is linked to, or is a consequence of, a parent’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
12. Nor can we investigate the part of Mr X’s complaint where he said he was unhappy the Council used his EP report during the SEND Tribunal proceedings, and it should now refund his fee. This is because the SEND Tribunal already has extensive case management powers which allow it to make an order for costs if it considers a party has acted unreasonably in bringing, defending or conducting proceedings. 
13. Finally, we will not investigate Mr X’s complaint at part (c). I have read the Council’s response to him on that matter, and it is unlikely we would find fault.

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Final decision

14. We will not investigate Mr X’s complaint because the substantive matters are outside of our jurisdiction and on the other matters, it is unlikely we would find fault.

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Investigator's decision on behalf of the Ombudsman