Summary: We cannot investigate Mrs X’s complaint about the Council’s handling of her request it issue her son with an Education, Health and Care Plan. Mrs X appealed to the First-tier Tribunal (Special Educational Needs and Disability). This places the complaint outside our jurisdiction.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complained about the Council’s handling of her request it issue her son with an Education, Health and Care Plan (EHC Plan). Mrs X says the Council wrongly changed an Educational Psychologist’s report leading to it refusing her request. This meant Mrs X had to appeal the Council’s decision. Mrs X says this meant avoidable delay and an impact on her son’s education.

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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 and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. We will not start an investigation into Mrs X’s complaint.
9. The issue at the heart of this complaint is how the Council decided not to issue Mrs X’s son with an EHC Plan. The decision-making process and the decision itself are closely linked.
10. Parents who want to challenge a council’s decision not to issue an EHC Plan have a right of appeal to the SEND Tribunal. It is the mechanism set up by Parliament for parents to challenge such decisions. Mrs X used her right of appeal.
11. The law is clear that when a parent has appealed to a tribunal the matter appealed, or anything closely linked is outside our jurisdiction. This exclusion applies from when the appeal rights were available to when the Tribunal issues its decision. Mrs X’s appeal to the SEND Tribunal hinged on the Council’s decision not to issue an EHC Plan, which as I explain above, is linked to the decision-making process itself. That places Mrs X’s complaint outside our jurisdiction. Also, as explained in paragraph 5, the fact there may be claimed injustice which neither the Ombudsman nor the Tribunal can remedy does not mean the complaint is in our jurisdiction. We simply have no powers to consider Mrs X’s complaint.

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Final decision

12. We cannot investigate Mrs X’s complaint because she has appealed to a tribunal. This means the complaint is outside our jurisdiction.

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Investigator's decision on behalf of the Ombudsman