Summary: We will not investigate this complaint that the Council was at fault in declining to include the provision of school transport in the complainant’s daughter’s Education Health and Care plan, and in failing to respond reasonably to her complaint about the matter. She used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) and this places the complaint outside the Ombudsman’s jurisdiction.

The complaint

1. The complainant, Mrs X, complains that the Council was at fault in declining to include the provision of school transport in her daughter’s Education Health and Care (EHC) plan, and in failing to respond reasonably to her complaint about the matter.

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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 Tribunal in this decision statement.
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. 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

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

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My assessment

9. The complainant’s daughter has special educational needs and an EHC plan. When the Council issued the EHC plan it set out that, while the school named in Section I was suitable, there were other suitable schools closer to the complainant’s daughter’s address. As such, it said it was not required to provide school transport and would not do so.
10. Mrs X complained about this decision, and the associated wording in Section I of the EHC plan. She says the Council failed to properly consider and respond to her complaint. She used her right to appeal to the Tribunal. The Council decided not to oppose the appeal, and agreed to remove the wording in Section I and provide transport.
11. The Ombudsman cannot investigate Mrs X’s complaint. Her appeal to the Tribunal places it outside our jurisdiction. 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. Mrs X’s complaint to the Council concerned the wording of Section I, which was the matter about which she appealed. The complaint response is caught by the legal restriction and does not therefore fall to be investigated. There is no discretion available to us in the matter and we cannot intervene.

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Final decision

12. We cannot investigate Mrs X’s complaint because her appeal to the Tribunal places it outside our jurisdiction.

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Investigator's decision on behalf of the Ombudsman