Summary: We cannot investigate this complaint about fault in the production and content of an Education Health and Care plan. The complainant has used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) which means the Ombudsman cannot intervene.

The complaint

1. The complainant, Mrs X, complains that the Council has been at fault in the production of her son’s Education Health and Care (EHC) plan and in declining to consider her subsequent complaint.

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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. 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)
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…”.

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How I considered this complaint

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

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My assessment

8. Mrs X’s son has special educational needs and an EHC plan. Mrs X says the Council was at fault in the course of the production of the EHC plan. Specifically, she complains that it failed to obtain required assessments and include relevant professional advice. She also complains that the Council’s consultation with schools was unlawful.
9. Mrs X says that, as a result of the fault, the EHC plan the Council has issued does not identify and meet her son’s needs. She argues that, as a result, he does not have an appropriate school placement.
10. Mrs X further complains that the Council has declined to accept her complaint on the grounds that she has used her right to appeal to the Tribunal. She argues that this unreasonably denies her access to local redress.
11. The Ombudsman cannot investigate Mrs X’s complaint. The courts have decided that, where an appeal has been lodged, the law says the Ombudsman cannot consider matters relating to the content of an EHC plan. This includes any matters which are material to the EHC plan’s content, such as the evidence used in its production or the consultations with potential placements. There is no discretion available to us.
12. Where a substantive matter does not fall to be investigated, as is the case here, the Ombudsman does not normally investigate how a council has responded to a complaint about the matter. It is not a good use of our resources to do so. We will not therefore investigate the Council’s decision not to respond to Mrs X’s complaint

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Final decision

13. We cannot investigate Mrs X’s complaint because she has used her right to appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman