Summary: We cannot investigate this complaint about the production and content of the complainant’s daughter’s Education Health and Care Plan. The complainant used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) and this places the matter outside the Ombudsman’s jurisdiction.

The complaint

1. The complainant, Ms X, complains the Council was at fault in the production of her daughter’s Education Health and Care (EHC) Plan and that, as a result, it named a school which could not meet her daughter’s needs.

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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.

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How I considered this complaint

5. I considered information provided by the complainant.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Ms X’s daughter has special educational needs. Ms X complains about the Council’s actions in the course of producing her EHC Plan. She complains that the Council deliberately failed to attach an Educational Psychology report to the EHC Plan in order to facilitate the naming of a cheaper placement. She also complains that the use of a document which had been superseded introduced factual errors into the EHC Plan which were subsequently shared.
8. Ms X used her right to appeal to the SEND Tribunal and obtained the placement of her choice. She says however that the period when her daughter was on roll at the school initially named in the EHC Plan caused detriment to her daughter and to her.
9. The Ombudsman cannot investigate Ms X’s complaint. By law, we cannot consider matters relating to the content of the EHC Plan. The fact that Ms X has used her right to appeal to the SEND Tribunal places these matters outside our jurisdiction. This is the case even where the appeal is subsequently successful.
10. 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. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207). This prevents us from considering what happened during the production of Ms X’s daughter’s EHC Plan, or any impact this may have had.

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Final decision

11. We cannot investigate Ms X’s complaint because she has used her right to appeal to the SEND Tribunal, and this places the complaint outside our jurisdiction.

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Investigator's decision on behalf of the Ombudsman