Summary: We will not investigate this complaint that the Council was at fault in the process of assessing the complainant’s daughter’s needs and in producing her Education Health and Care plan. The matters about which she complains could have been the subject of an appeal to the First-tier Tribunal (Special Educational Needs and Disability, or are not separable from those matters.

The complaint

1. The complainant, Mrs X, complains that the Council was at fault in the course of her daughter’s Education Health and Care Needs Assessment (EHCNA) and in the production of her Education Health and Care (EHC) plan. As a result, the EHC plan does not meet her daughter’s needs.

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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 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.
4. 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)
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. 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…”.

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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. Mrs X’s daughter has special educational needs and an EHC plan. Mrs X complains that the Council was at fault throughout the process of assessing her daughter. She says that, as a result of the fault on the Council’s part, the EHC plan does not meet her daughter’s needs and that this continues to cause significant harm to her. Mrs X says the Council should commit to amending the EHC plan to include specific professional advice.
10. The Ombudsman will not investigate Mrs X’s complaint. This is because the fault she identifies relates to the Council’s actions in the course of the assessment of her daughter’s needs. The key outcome of the fault she identifies is the content of the EHC plan. This is not a matter which falls to be investigated. This is the case even though the Council has accepted some fault in its response to Mrs X’s complaint.
11. The correspondence Mrs X has provided indicates that she used her right to appeal to the Tribunal against the Council’s initial decision to carry out an EHCNA. Despite the fact that the Council conceded and the appeal did not proceed, the fact that it was initiated places the matter outside the Ombudsman’s jurisdiction by law.
12. The fault Mrs X identifies in the subsequent EHCNA has, she contends, resulted in an EHC plan which omits required information and does not meet her daughter’s needs. The Ombudsman will take no view on this. This is because the content of an EHC plan can be the subject of an appeal to the Tribunal. Where appeal rights exist, the Ombudsman normally expects them to be used, and it would have been reasonable for Mrs X to do so in this case.
13. If Mrs X was unhappy with the content of the EHC plan her recourse was to appeal. The matters about which she complains are not separable from matters which could have been considered by the Tribunal and do not therefore fall to be investigated by the Ombudsman.

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Final decision

14. We will not investigate Mrs X’s complaint because it concerns matters about which she could have appealed to the Tribunal, or are not separable from those matters.

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Investigator's decision on behalf of the Ombudsman