Summary: We cannot investigate this complaint about the Education, Health and Care Plan process for Mr X’s children. This is because Mr X has appealed to the Tribunal. This places the matter outside our jurisdiction.

The complaint

1. The complainant, whom I shall refer to as Mr X, complained about the Education, Health and Care Plan (EHC Plan) process for his children. Mr X is unhappy with the school named in his children’s EHC Plans. Mr X says the Council ignored his views, did not explain its decision, and finalised the EHC Plans without his consent. Mr X says the Council’s actions meant he had to appeal to the Tribunal, and the Council is now refusing to update the EHC Plans because of his appeal.

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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 courts have established that if someone has appealed to the Tribunal, 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).
5. 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.
6. We cannot investigate the council’s conduct during an appeal. This includes anything a complainant could have raised with the Tribunal at any stage of the appeal, or which the Tribunal has considered on its own initiative, or which could have been a part of the Tribunal’s deliberations in resolving the appeal (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)  
7. 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

8. I considered information provided by the complainant and the Council.
9. I considered the Ombudsman’s Assessment Code.

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My assessment

10. We will not start an investigation into Mr X‘s complaint.
11. Parents who are unhappy with the content of their child’s EHC Plan have a right of appeal to the SEND Tribunal. We expect parents to use that right unless it is unreasonable for them to do so. It is the mechanism set up by Parliament for parents to challenge decisions about the EHC Plan process.
12. Mr X is unhappy with the school named in his children’s EHC Plans. Mr X has appealed this to the Tribunal and so it is not something we can consider.
13. The law also prevents us from investigating anything linked to the matter appealed or which can be considered by the Tribunal. How the Council decided the school named in the EHC Plans and the process followed are all directly linked to the content of the EHC Plan. Because of Mr X’s appeal we have no powers to consider these related matters.
14. We are also barred from considering the Council’s review of his children’s EHC Plans. We cannot consider the Council’s conduct during the appeal. The Council has also said it will include any revisions to the EHC Plans in the Working Document the Tribunal will look at and so this is outside our jurisdiction. A claim of injustice from alleged fault by the Council does not change what we can consider.

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Final decision

15. We cannot investigate Mr X’s complaint because he has appealed to the Tribunal. The complaint is therefore outside our jurisdiction.

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Investigator's decision on behalf of the Ombudsman