Summary: We cannot investigate Mr X’s complaint about how the Council handled his child’s Education, Health and Care Plan because we cannot investigate any matter connected to a decision that has been appealed to a tribunal.

The complaint

1. Mr X complained about the advice the Council sought when producing his child, Y’s, Education, Health and Care (EHC) Plan and how it consulted with the parents’ preferred school. He said the Council’s actions have caused avoidable stress and uncertainty which affected Y’s wellbeing. He wants an apology and a financial remedy.

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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. The courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
4. 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)
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.

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How I considered this complaint

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

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My assessment

8. In October 2023, Mr X asked the Council carry out an EHC needs assessment for Y. After it completed the assessment, the Council produced an EHC Plan for Y. Mr X says the EHC Plan was late.
9. Mr X said the Council failed to gather advice from relevant professionals when assessing Y’s needs. He said this meant Y’s EHC Plan did not reflect their needs and was missing information.
10. Mr X also complained that, although the Council consulted with the parent’s preferred school, it did not ask it about the possibility of Y joining a different year group as the parents had requested. He said the failure to correctly consult with the school resulted in a school which could not meet Y’s needs being named in the EHC Plan.
11. Mr X appealed the contents of, and the school named, in the EHC Plan, to the Tribunal. The Tribunal ordered the Council to amend Y’s EHC Plan and name a different school. The Council issued a new EHC Plan in September 2024.
12. Mr X then complained to us. He told us he was satisfied with the actions the Council took regarding his complaint about delays to the EHC Plan but he still wanted us to consider the other parts of his complaint.
13. We cannot investigate Mr X’s complaint the Council failed to gather advice from relevant professionals and did not correctly consult with the parents’ preferred school. As explained in paragraph four, we cannot investigate any matter which is connected to an appeal to the Tribunal. The evidence and school consultations used to produce the EHC Plan cannot be separated from the appeal to the Tribunal about the contents of, and school named in the EHC Plan. Therefore, the Ombudsman has no jurisdiction to consider these matters.

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Final decision

14. We will not investigate Mr X’s complaint because the matters are too closely linked to an appeal to the Tribunal which means the Ombudsman has no jurisdiction to consider them.

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Investigator's decision on behalf of the Ombudsman