Summary: We will not investigate this complaint about the Council’s decision not to amend an Education Health and Care plan following Annual Review. This is because the complainant has used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) and matters relating to the content of the Education Health and Care plan cannot therefore be investigated.

The complaint

1. The complainant, Mrs X, complains that the Council is at fault in refusing to make appropriate amendments to her child’s Education Health and Care (EHC) plan following Annual Review.

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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. 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)
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. 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…”.
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. Mrs X’s daughter has an EHC plan. The EHC plan is the subject of an appeal to the Tribunal. The appeal relates to Sections B and F, which set out the child’s special educational needs and the provision required to meet them.
10. While the appeal has been pending, the Council has carried out the Annual Review of the EHC plan. Mrs X says the review has identified that the school her daughter attends is unable to meet her needs and she has asked the Council to amend Section I of the EHC plan to name an alternative school. Her complaint concerns the Council’s decision not to do so.
11. In response to Mrs X’s request, the Council has said it will not make the change she has asked for because of the ongoing appeal. Mrs X contends that this decision is unreasonable, and is not supported by the relevant legislation. She further complains that the Council has failed to communicate with her appropriately, and that alternative provision has not been made when her daughter has been unable to attend school.
12. The Ombudsman cannot investigate Mrs X’s complaint. This is because she has used her right to appeal to the Tribunal. By law, this means the Ombudsman cannot investigate the matters about which she has appealed. The courts have established that the same restriction applies to matters which are connected to, or could have been part of, the appeal to the Tribunal. The Tribunal has wide-ranging powers to decide which matters it can consider and Mrs X has indicated her intention to add the content of Section I to the appeal. The decision not to amend Section I does not therefore fall to be investigated. There is no discretion available to us.
13. The restriction set out above also means that, if a child is not attending school, and we decide the reason is linked to, or is a consequence of, disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision or alternative provision. We cannot therefore consider whether the Council is at fault in failing to make alternative provision for Mrs X’s daughter

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Final decision

14. 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