Summary: We cannot investigate Mrs X’s complaint about the content of her child, Y’s, Education, Health and Care Plan, or about how the Council delivered the content of Y’s EHC Plan to them. This is because Mrs X appealed to a Tribunal, and the law says we cannot investigate.

The complaint

1. Mrs X complained the Council:
• named an unsuitable placement in section I of her child, Y’s, Education, Health and Care (EHC) Plan in summer 2023 without consulting with her; and
• failed to deliver the content of Y’s EHC Plan to them.
2. Mrs X says the matter caused her distress and caused Y to miss out on education.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 no worthwhile outcome achievable by our investigation. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
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.
6. 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)
7. 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)

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How I considered this complaint

8. I considered information provided by the complainant.
9. I considered the Ombudsman’s Assessment Code.

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My assessment

10. We cannot investigate this complaint. Mrs X appealed the content of Y’s EHC Plan to the SEND Tribunal. The courts have confirmed that we cannot investigate any matter which is part of, or connected to, a Tribunal appeal.
11. The reason Y did not receive the content of their EHC Plan is because of Mrs X’s disagreement about the named placement. These matters are not separable, and therefore we cannot investigate.
12. Mrs X’s dissatisfaction with the Council’s conduct prior to the final EHC Plan being issued is connected to the matters she appealed, and so we cannot investigate.

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Final decision

13. We will not investigate Mrs X’s complaint because she appealed to a Tribunal, and the law says we cannot investigate.

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Investigator's decision on behalf of the Ombudsman