Summary: We cannot investigate this complaint that the Council was at fault in specifying that the complainant’s son had a social, emotional and mental health need in his draft amended Education Health and Care plan. This is because the complaint concerns a matter which could have been considered in the course of the complainant’s appeal to the First-tier Tribunal (Special Educational Needs and Disability), and this places it outside the Ombudsman’s jurisdiction.

The complaint

1. The complainant, Mr X, complains that the Council was at fault in specifying that his son had a social, emotional and mental health (SEMH) need in his draft amended Education Health and Care (EHC) plan.

Back to top

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). 

Back to top

How I considered this complaint

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

Back to top

My assessment

8. Mr X ‘s son has special educational needs and an EHC plan. Mr X’s complaint concerns the content of Section B of a draft amended EHC plan issued by the Council. Mr X says the Council identified SEMH as a secondary need, despite there being no professional advice to support this assertion. He says he believes this was an attempt to move his child to a school which would not have been appropriate for his needs.
9. Mr X’s representations led to the removal of SEMH from the draft. His subsequent complaint to the Council was upheld in part.
10. The Ombudsman cannot investigate Mr X’s complaint. At the point at which the draft EHC plan was issued, Mr X’s son’s existing EHC plan was the subject of an appeal to the Tribunal. The matter is therefore outside our jurisdiction.
11. Whether the wording to which Mr X objected appeared in the iteration of the EHC plan which was the subject of the appeal is not relevant. Whether Mr X’s child had a SEMH need is a matter which could have been addressed in the course of the appeal and considered by the Tribunal. That is sufficient to place it outside the Ombudsman’s jurisdiction. We cannot intervene.

Back to top

Final decision

12. We cannot investigate Mr X’s complaint because it concerns a matter which could have been considered in the course of his appeal to the Tribunal.

Back to top

Investigator's decision on behalf of the Ombudsman