Summary: We will not investigate Mr X’s complaint about the Council’s decision not to issue his son with an Education, Health and Care Plan. Mr X appealed to a tribunal and so the case is outside our jurisdiction with no discretion to investigate.

The complaint

1. The complainant, Mr X, complained the Council refused to issue his son with an Education, Health and Care Plan. Mr X successfully appealed the Council’s decision to a tribunal. Mr X wants the Council to explain its decision, investigate, and pay compensation.

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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). 

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How I considered this complaint

6. I considered information provided by the complainant and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. We will not start an investigation into Mr X’s complaint.
9. Parents who disagree with a council’s decision about whether to issue an EHC Plan have a right of appeal to the SEND Tribunal. It is the mechanism 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 until the SEND Tribunal issued its decision. We have no powers to consider the issue appealed or linked matters, including any claimed injustice. Mr X’s complaint is not one we can consider.

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Final decision

11. We will not investigate Mr X’s complaint because he has appealed to a tribunal. This places the matter outside our jurisdiction.

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Investigator's decision on behalf of the Ombudsman