Summary: We cannot investigate this complaint about the content of an Education, Health and Care Plan. Mrs X has appealed to the First-tier Tribunal, and the law says we cannot investigate. We will also not investigate Mrs X’s complaint about the Council’s complaint handling. It is not a good use of resources to consider a complaint about complaint procedures if we are unable to deal with the substantive issue.

The complaint

1. Mrs X complained the Council did amend her child’s Education, Health and Care (EHC) Plan after an annual review, and refused to consider her complaint at stage two of its complaints procedure.
2. Mrs X said this meant her child’s needs were not met causing distress and frustration.
3. Mrs X wants the Council to accept the specialist report she put in, amend the EHC Plan and provide a personal budget to meet her child’s needs.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the Tribunal in this decision statement.

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How I considered this complaint

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

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My assessment

9. Mrs X’s child, Y, has Social, Emotional and Mental Health (SEMH) needs, and an EHC Plan.
10. Mrs X sought amendments to Y’s EHC Plan. At annual review, the Council decided not to amend the EHC Plan and told Mrs X of her right to appeal to the Tribunal. Mrs X appealed to the Tribunal.
11. We cannot investigate this part of Mrs X’s complaint. 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)
12. The Council decided not to consider Mrs X’s complaint at stage two of its complaints procedure because an alternative remedy was available via appeal to the Tribunal.
13. We will not investigate this part of Mrs X’s complaint. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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Final decision

14. We cannot investigate Mrs X’s complaint because she appealed to the Tribunal and the law says we cannot investigate. Also, it is not a good use of resources to consider a complaint about complaint procedures, if we are unable to deal with the substantive issue.

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Investigator's decision on behalf of the Ombudsman