Summary: We will not investigate Mr X’s complaint about two Council decisions to refuse his child an Education, Health and Care needs assessment, and its conduct during the tribunal appeals process. Mr X either had a right of appeal or used his right of appeal against the decision. We cannot consider any matter connected to a decision that has been appealed to a tribunal.

The complaint

1. Mr X complains about Council decisions to refuse to assess his child, Y, for an Education, Health and Care (EHC) plan in August 2022 and June 2023. He also says the Council gave inaccurate information during an appeal to the SEND tribunal. He wants the Council to reimburse his costs, compensate him for Y’s lost education and the distress caused and improve its services.

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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. 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)
5. 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)
6. We cannot investigate the council’s conduct during an appeal. This includes anything a complainant could have raised with the tribunal at any stage of the appeal, or which the tribunal has considered on its own initiative, or which could have been a part of the tribunal’s deliberations in resolving the appeal (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)  
7. Some parents will incur significant legal and expert fees during the appeal process. We cannot investigate this as the tribunal has powers to consider and/or award costs as part of the appeal. (The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699, Rule 10) 
8. 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

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

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My assessment

11. We will not investigate this complaint.
12. Mr X had a right of appeal against the August 2022 decision not to assess Y for an EHC plan. It was reasonable for him to use this right if he disagreed with this decision.
13. Mr X used his right of appeal to the SEND Tribunal about the June 2023 decision and so we cannot investigate this. We also cannot investigate the Council’s conduct during the appeal process or Mr X’s requests for reimbursement of costs. These matters either have or could have been considered by the Tribunal as part of the appeal.

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Final decision

We will not investigate Mr X’s complaint because he either had or has used his right of appeal to a tribunal. We cannot consider any matter connected to a decision that has been appealed.

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Investigator's decision on behalf of the Ombudsman