Summary: We cannot investigate Mrs X’s complaints about how the Council conducted a review of her child’s Education, Health and Care (EHC) Plan or about the Council’s conduct during a Tribunal. This is because Mrs X appealed to the SEND Tribunal about the content of the EHC Plan, and the law says we cannot investigate matters closely related to, or considered by, a Tribunal.

The complaint

1. Mrs X complained the Council failed:
• to consult with appropriate schools for Y as part of the Education, Health and Care (EHC) review process and named an inappropriate setting in Y’s EHC Plan;
• to prepare for Tribunal and about the Council’s conduct during the Tribunal which led to delay;
• to obtain relevant professional reports for Y’s EHC Plan; and
• to communicate with her about the matter.
2. Mrs X said this caused her frustration, distress, and financial hardship.
3. Mrs X wants the Council to reimburse her costs for the Tribunal process, implement service improvements, and apologise.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 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)
8. 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)  
9. 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) 

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How I considered this complaint

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

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My assessment

12. We cannot investigate Mrs X’s complaints. Mrs X’s complaints each relate to matters that were either considered by a Tribunal or are too closely related to a matter that was considered by a Tribunal. This includes:
• the named school in section I of Y’s EHC Plan including the school consultations (as explained at point 6 of this decision);
• the Council’s conduct during the Tribunal proceedings (as explained at point 8);
• professional reports for Y’s EHC Plan including Educational Psychology and Occupational Therapy reports (as explained at point 6);
• any costs Mrs X incurred as a part of the Tribunal proceedings (as explained at point 8 and 9);
• the Council’s communication. This includes the school consultations. The consequence of the Council’s poor communication was that, in Mrs X’s view, the final EHC Plan named an inappropriate school. Mrs X appealed this to the Tribunal. Therefore, this matter is too closely related to the issue that was appealed, and we cannot investigate (as explained at point 7 of this decision).

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Final decision

13. We cannot investigate Mrs X’s complaint because she appealed to a Tribunal.

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Investigator's decision on behalf of the Ombudsman