Summary: We cannot investigate Mr X’s complaint about missed education provision and the Council’s consideration of an Education, Health, and Care Plan for his child. The law does not allow us to investigate, because Mr X has used his right of appeal, and these are matters which were linked to his appeal.

The complaint

1. Mr X complained to us, because he was dissatisfied the Council has not resolved his complaint about missed education provision for his son (Y). Mr X said the Council delayed finalising an Education, Health, and Care (EHC) Plan, which he then had to appeal because he did not agree with the contents. Mr X said this meant Y missed education provision for a whole year.

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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. The courts have established that if someone has appealed to the 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. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
5. 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.

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How I considered this complaint

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

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My assessment

8. Mr X is the parent of Y. In 2022, the Council issued a final EHC Plan for Y and Mr X subsequently lodged an appeal with the SEND Tribunal. Mr X appealed Section B (special educational needs), Section F (special education provision) and Section I (the educational placement).
9. Mr X subsequently complained the Council had delayed issuing the final EHC Plan and asked the Council to compensate him for expense he had incurred, in providing education for Y. Mr X said this related to the delayed period and during the period while the matter was waiting to be heard at the SEND Tribunal.
10. Mr X has already used an alternative legal remedy and appealed to the SEND Tribunal about Y’s EHC Plan. This included the provision and placement, and the matters he is complaining about here, are connected to, or could have been considered during his appeal to the SEND Tribunal. Therefore, we cannot investigate his complaint for the reasons I have outlined at paragraph three and four.

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Final decision

11. We cannot investigate Mr X’s complaint because he has used a right of appeal to challenge the Council’s decisions about his son’s EHC Plan including the education provision.

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Investigator's decision on behalf of the Ombudsman