Summary: We will not investigate this complaint about alleged fault in the process of producing and issuing the complainant’s daughter’s Education Health and Care plan. It would be reasonable for the complainant to use his right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) about the content of the Education Health and Care plan, and the substantive matters do not therefore fall to be investigated by the Ombudsman.

The complaint

1. The complainant, Mr X, complains that the Council was at fault in:
• naming an unsuitable placement in his daughter’s Education Health and Care (EHC) plan;
• preventing him from exercising his right to comment before the EHC plan was issued; and
• declining to respond to his complaint about his actions.

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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.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. Ms X’s daughter has special educational needs and an EHC plan. Mr X complains that the Council issued her final EHC plan naming a college which cannot meet her needs. He further complains that the Council ended the consultation process early, thereby preventing him from commenting on the placement before the EHC plan was finalised.
10. Mr X complained to the Council. The Council has not treated the matter as a complaint, but has referred him to the appeal process. Mr X argues that this prevents him from seeking a resolution for procedural fault on the Council’s part.
11. We will not investigate Mr X’s complaint. We can take no view on whether the decision to name the college Mr X regards as unsuitable amounts to fault. This is a matter about which he has the right to appeal to the Tribunal. Where appeal rights exist, the Ombudsman normally expects them to be used. It would be reasonable for Mr X to use his right to appeal.
12. The fact that it would be reasonable for Mr 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. 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.
13. The impact of the alleged procedural fault on the Council’s part is precisely that Mr X was unable to comment on the proposed placement and was therefore unable to influence the content of the EHC plan. The issues are not separable. The availability of the appeal right therefore prevents the Ombudsman from investigating whether the Council was at fault in ending consultations early, and we will not do so.
14. We will not investigate whether the Council was at fault in how it responded to Mr X’s complaint about its actions. It is not a good use of public resources to investigate complaints about complaint procedures when we are unable to deal with the substantive issue. That is the case here.

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Final decision

15. We will not investigate Mr X’s complaint because it would be reasonable for him to use his right to appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman