Summary: We cannot investigate some of Miss X’s complaint about the Education, Health and Care process regarding her child because she appealed to a Tribunal. We will not investigate some of Miss X’s complaint because she had a right to appeal to a Tribunal. There is no worthwhile outcome achievable through an investigation into the remaining issues.

The complaint

1. Miss X complained about:
• the Council’s decision not to conduct an Education, Health and Care (EHC) needs assessment of her child, Y, in May 2023;
• the process of the EHC needs assessment following a Tribunal Order;
• the content of Y’s final EHC Plan made in March 2024;
• the conduct of Council staff; and
• delays in the complaints process.
2. Miss X said the matters caused her frustration and distress.

Back to top

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. 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. 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)
6. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal…such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”
7. The courts have established that if someone has appealed to a 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)
8. 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)
9. 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))

Back to top

How I considered this complaint

10. I considered information provided by the complainant.
11. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

Decision not to conduct an EHC needs assessment

12. Miss X complained the Council should have completed an EHC needs assessment of Y in May 2023 and said the Council was wrong to refuse the request.
13. We cannot investigate this matter because Miss X used her right to appeal to the SEND Tribunal, and the law says we cannot investigate any matter appealed to a Tribunal.

EHC needs assessment process and content of Y’s EHC Plan

14. Miss X complained about the EHC needs assessment process and the content of Y’s final EHC Plan including but not limited to:
• professional reports obtained to make the EHC Plan;
• school consultations and the decision to name mainstream schools in section I of Y’s EHC Plan;
• her request for Y to receive Education Other than at School (EOTAS);
• the EHC Plan not being “SMART”; and
• the content of section F (the special educational provision).
15. The Council made Y’s final EHC Plan in March 2024. It named a mainstream primary school in section I until July 2024, and then a mainstream secondary school from September 2024.
16. Miss X had a right to appeal to the SEND Tribunal about the content of Y’s EHC Plan.
17. The consequence of the issues Miss X complained about is that, in her view, Y’s EHC Plan does not reflect Y’s needs. The Ombudsman cannot direct changes to the sections of an EHC Plan about a child or young person’s needs, education, or the name of the educational placement. Only the SEND Tribunal or the Council can do this.
18. If Miss X is unhappy with the content of Y’s EHC Plan, it is reasonable to expect her to submit an appeal to the SEND Tribunal. The SEND Tribunal can then consider the content of the EHC Plan and whether any additional professional reports are required and consider the suitability of the schools named in section I.
19. Because it is reasonable to expect Miss X to appeal to the SEND Tribunal to achieve the outcome she wants, and because Miss X’s complaints are matters that are closely related to issues she could have appealed, we will not investigate these complaints.

Staff conduct

20. Miss X complained about the conduct of a staff member including unprofessional behaviour during a meeting.
21. We will not investigate this complaint. An investigation into this matter is unlikely to result in any outcome because the meeting was not recorded and we cannot say, even on the balance of probabilities, what happened. Therefore, we will not investigate this complaint.

Complaint delays

22. Miss X complained the Council’s stage one complaint response was delayed and sent 11 weeks after her original request.
23. 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. Therefore, we will not investigate this matter.

Back to top

Final decision

24. We cannot investigate some of Miss X’s complaint because she appealed to a Tribunal. We will not investigate some of Miss X’s complaint because she had a right to appeal to a Tribunal. There is no worthwhile outcome achievable through an investigation into the remaining issues.

Back to top

Investigator's decision on behalf of the Ombudsman