Summary: Ms M complained about matters related to a paediatric assessment of her child. Her Council complaint is part of, or connected to, a Tribunal appeal. The rest of her complaint is about NHS organisations. The law prevents us from investigating all these matters.

The complaint

1. Ms M complains about the actions of the Council and NHS organisations. In summary, she complains about the following issues:
1. the Council’s failure to refer her child, X, for the correct paediatric assessment following a mediation agreement in November 2023;
2. the NHS organisations’ refusal of paediatric referrals from X’s GP and the Council; and
3. the NHS organisations’ communication and complaint handling about these matters.
2. Ms M says this disadvantaged X’s Education, Health and Care (EHC) Plan as it does not contain relevant information from medical professionals or appropriate educational and health provision.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. The Local Government and Social Care Ombudsman (LGSCO) investigates complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as NHS organisations (Local Government Act 1974, sections 25 and 34(1), as amended). Sometimes, we may work jointly with the Parliamentary and Health Service Ombudsman (PHSO) to jointly investigate complaints about health and social care or education that meet our criteria.
5. 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)
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. 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. 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

9. I considered information provided by the complainant, PHSO and the Council.
10. I considered the Ombudsman’s Assessment Code.
11. The complainant has had an opportunity to comment on a draft version of this decision. I have considered their comments before making a final decision.

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My assessment

12. We can separate the Council part of the complaint (summarised in paragraph 1a above) from the complaints about NHS organisations (paragraphs 1b and 1c above). We will therefore not start a joint investigation with PHSO. This means we cannot investigate the complaints summarised at paragraphs 1b and 1c.
13. Ms M has appealed to the Tribunal about parts of X’s recent EHC Plans. The appeal process includes the Tribunal considering:
• the November 2023 mediation certificate setting out the Council’s undertakings;
• Ms M’s appeal form and other documents; and
• the Council’s appeal responses.
14. The documents that are part of the appeal process include the following information, which will form part of the Tribunal’s consideration:
• Ms M seeks recommendations for health-related parts of X’s EHC Plan to include current information on all of X’s health needs, and health care provision for X; and
• Ms M’s appeal refers to X’s EHC Plan not containing details of a paediatric assessment or provisions identified by a paediatric assessment.
15. This means that Ms M’s complaint to us about the Council is part of, or connected to, her Tribunal appeal and we cannot investigate it.

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Final decision

16. The Ombudsman cannot investigate Ms M’s complaint. This is because parts of the complaint are about NHS organisations, and the Council part of the complaint is part of, or connected to, Ms M’s Tribunal appeal.

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Investigator's decision on behalf of the Ombudsman