Summary: Mrs X complained that the Council named an inappropriate school in section I of her child, Y’s, Education, Health and Care Plan and failed to organise education for Y when they were unable to attend school during a Tribunal period. Mrs X also says the Council provided inaccurate information to the Tribunal and failed to deliver the content of Y’s EHC Plan to them following the Tribunal order in December 2024. We have discontinued the investigation into this complaint.

The complaint

1. Mrs X complained that the Council:

1. named an inappropriate school in section I of her child, Y’s, Education, Health and Care (EHC) Plan;
2. failed to organise education for Y when they were unable to attend school during a Tribunal period;
3. provided inaccurate information to the Tribunal; and
4. failed to deliver the content of Y’s EHC Plan to them following the Tribunal order in December 2024.

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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. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), 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. 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…”.
6. 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.
7. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully.
8. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

9. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
10. Mrs X and the Council were invited to comment on my draft decision. I have considered any comments before making a final decision.

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What I found

11. Mrs X lodged an appeal with the Tribunal regarding her son, Y’s EHC Plan. The Tribunal hearing took place in December 2024.
12. Mrs X complained to the Council in December 2024 following the outcome of the Tribunal and said it had failed to name a suitable place for her child Y in their EHC Plan. Mrs X also said the Council had failed to organise suitable education for Y while the Tribunal process was ongoing, and that the Council provided inaccurate information to the Tribunal. Mrs X also said the Council had failed to provide the content of Y’s EHC Plan following the Tribunal.
13. The Council issued a response to Mrs X’s complaint in late December 2024 and confirmed what type of placement was named in Y’s EHC Plan. The Council also confirmed it was actively looking for a placement for Y.

Analysis

14. The law says that we cannot investigate if someone has sought a remedy by way of proceedings in any court of law. Mrs X has appealed to The First-tier Tribunal (Special Educational Needs and Disability) about Section I of Y’s EHC Plan. We therefore cannot consider any complaint linked to this appeal.
15. We therefore cannot consider points a-c of Mrs X’s complaint listed in paragraph one as these all relate to the Tribunal action.
16. Mrs X said her complaint does not include point d) listed in paragraph one as she felt the Council did take action following the Tribunal and does not want us to consider this element.

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Decision

17. I have discontinued this investigation. This is because elements a) - c) of Mrs X’s complaint are linked to Tribunal action and she does not wish for element d) to be considered.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman