Summary: We will not investigate this complaint about the special educational provision in an education, health and care plan because it is reasonable for the complainant to appeal to the Tribunal about the contents of the plan.

The complaint

1. Mrs X complains the Council has failed to provide the provision outlined in her child’s Education, Health and Care (EHC) Plan and she is unhappy with the provision in the plan. Mrs X requests the Council issues an appropriate EHC Plan with suitable provision.

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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 law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (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. 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)
6. 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

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

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My assessment

9. We will not start an investigation into Mrs X’s complaint.
10. Mrs X is unhappy with provision included in her child’s EHC Plan. Parents who are unhappy with the contents of an EHC Plan have a right to appeal to the Tribunal. It is the mechanism set up by Parliament for parents to challenge such decisions. We expect parents to use their right of appeal unless it is unreasonable for them to do so.
11. The Tribunal could have ordered changes to the provision in the EHC Plan. This is the outcome Mrs X wanted. It was therefore reasonable for Mrs X to appeal and so we will not investigate.
12. The fact it would have been reasonable for Mrs X to appeal means that the content of the EHC Plan, and matters which are connected to the content, do not fall to be investigated by the Ombudsman. This is because 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. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right. I cannot investigate the education provision in place for Mrs X’s child following the issue of the EHC Plan because it is not separable from that right of appeal.

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Final decision

13. We will not investigate Mrs X’s complaint because it would be reasonable to appeal to the Tribunal about the contents of the EHC Plan.

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Investigator's decision on behalf of the Ombudsman