Summary: We cannot investigate this complaint about the Council’s decision not to issue an Education Health and Care Plan. The complainant used his right to appeal to the First-tier Tribunal (Special Educational Needs and Disability). This places the matter outside the Ombudsman’s jurisdiction.

The complaint

1. The complainant, Mr X, complains that the Council was at fault in declining to issue his child with an Education Health and Care (EHC) plan.

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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. 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

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

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My assessment

8. Mr X’s child has special educational needs. The Council initially refused to issue her with an EHC plan. Mr X complains that the decision was flawed, and that the Council failed to consider evidence provided by professionals which indicated that an EHC plan was appropriate.
9. Mr X used his right to appeal to the Tribunal against the Council’s decision. The Tribunal directed the Council to issue an EHC plan. In Mr X’s view, this outcome is indicative of systemic failure on the Council’s part. He says the Council’s refusal to issue an EHC plan disadvantaged his daughter, delaying appropriate provision to meet her special educational needs.
10. The Ombudsman cannot investigate Mr X’s complaint because he has used his right to appeal to the Tribunal. By law, this places the decision not to issue an EHC plan outside our jurisdiction, and the courts have decided that this restriction applies to any impact this decision may have had. There is no discretion available to us on this matter. We cannot intervene.

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Final decision

11. We will not investigate Mr X’s complaint because he has used his right to appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman