Summary: We will not investigate this complaint about the Education, Health and Care Plan process for the complainant’s child. This is because it was reasonable for Mrs X to use her appeal rights. We will not look at complaint handling as a standalone issue.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complained about the Council’s decision not to issue her child with an Education, Health and Care Plan (EHC Plan). Mrs X is unhappy with how the Council reached its decision and the way it dealt with her complaint.

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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 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)
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. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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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 investigate Mrs X’s complaint.
10. Parents who are unhappy with a council’s decision regarding their request for an EHC Plan have a right of appeal to the SEND Tribunal. It is the mechanism established by Parliament for parents to challenge such decisions. The Tribunal can decide if a child should be assessed or an EHC Plan issued. These are not decisions we can take. It was therefore reasonable for Mrs X to appeal as it could have given her the outcome she wants. We will not therefore investigate this issue.
11. The way the Council reached its decision is directly linked to the matter Mrs X could appeal and so is outside our jurisdiction.
12. Mrs X is also unhappy with how the Council dealt with her complaint. But it is not a good use of our resources to look at complaint handling if we are not going to investigate the issue which led to the complaint. This applies here and so we will not investigate.

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Final decision

13. We will not investigate Mrs X’s complaint because it was reasonable for her to use her right of appeal to the SEND Tribunal. We will not look at complaint handling as a standalone issue.

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Investigator's decision on behalf of the Ombudsman