Summary: We will not investigate this complaint about the Education, Health and Care Plan process for the complainant’s child. This is because the complainant has used their right of appeal to the First-tier Tribunal (Special Educational Needs and Disability). This places the complaint outside our jurisdiction.

The complaint

1. The complainant, Miss X, complained about the content of her son’s Education, Health and Care Plan and the process the Council followed to decide the school named. Miss X says the Council failed to follow the proper process and did not ask for their views.

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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.
5. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 
6. 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:

• further investigation would not lead to a different outcome, or
• there is no worthwhile outcome achievable by our investigation. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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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 start an investigation into Miss X’s complaint. Parents who are unhappy with the content of their child’s EHC Plan have a right of appeal to the SEND Tribunal. It is the method set up by Parliament for parents to challenge such decisions.
10. Where appeal rights have been used, the matter is outside our jurisdiction from the point at which the appeal rights were available. As well as the school named in the EHC Plan, we cannot consider how the Council decided the content of the plan. This is because the decision-making is too closely linked to the matter appealed. There is no discretion available to us to consider this matter.
11. Miss X’s appeal was settled by a consent order and the Council agreed to Miss X’s desired outcome. So, even if we could investigate, there would be no worthwhile outcome we could now achieve.

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Final decision

12. We will not investigate Miss X’s complaint because she has used her right of appeal to a tribunal.

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Investigator's decision on behalf of the Ombudsman