Summary: We will not investigate this complaint that the Council has failed to reassess the complainant’s son’s Education Health and Care plan within the statutory timescale. This is because the complainant has used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability), and the complaint is not separable from the matters which can be considered by the Tribunal.

The complaint

1. The complainant, Ms X, complains that the Council has failed to reassess her son’s Education Health and Care (EHC) plan within the statutory timescale.

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. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal…such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.
6. We cannot investigate the council’s conduct during an appeal. This includes anything a complainant could have raised with the Tribunal at any stage of the appeal, or which the Tribunal has considered on its own initiative, or which could have been a part of the Tribunal’s deliberations in resolving the appeal (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)

Back to top

How I considered this complaint

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

Back to top

My assessment

9. Ms X says the Council began a reassessment of her son’s education, health and care needs in April 2024. She says it has not finalised the reassessment. She complains that the failure to issue a decision letter complicated her ongoing appeal to the Tribunal and caused an adjournment. This has delayed her son receiving appropriate education.
10. In response to Ms X’s complaint, the Council has set out that it has not issued a new decision because of the ongoing Tribunal process. It says that to do so would give rise to a new appeal right before the current appeal is decided.
11. The Ombudsman cannot investigate Ms X’s complaint. The matters about which she complains relate to the assessment of her son’s needs. The assessment process considers the same matters as the Tribunal process.
12. The Tribunal has wide-ranging powers to decide what to consider. The matters engaged in the assessment are not separable from those the Tribunal will consider, or can decide to consider. As such, they fall outside the Ombudsman’s jurisdiction. We can therefore take no view on whether the Council has been at fault, or whether this has had an impact on the Tribunal process. There is no discretion available to us on this matter.

Back to top

Final decision

13. We cannot investigate Ms X’s complaint because she has used her right to appeal to the Tribunal and this places the complaint outsider our jurisdiction.

Back to top

Investigator's decision on behalf of the Ombudsman