Summary: We will not investigate this complaint about the Council’s handling of an Education, Health and Care (EHC) Plan because the complainant has appealed to the SEND Tribunal about the content of the EHC Plan, so we have no power to do so.

The complaint

1. Mrs X complains the Council failed to identify what her child’s needs were, disregarded expert reports and denied the family of support. Mrs X also complains about the Council’s refusal of her application for transport for her child.

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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 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)
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. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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”.

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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. We cannot investigate this complaint because Mrs X has appealed to the SEND Tribunal about the content of the EHC Plan. The matters Mrs X complains of are not separable from the process of amending the EHC Plan.
10. The courts have said that the Ombudsman cannot investigate such matters where an appeal about the content of an EHC Plan has been lodged. The complaint is therefore outside our jurisdiction with no discretion to investigate.
11. Mrs X also complains about the Council’s decision to refuse her application for transport. Mrs X had the right to appeal this decision if she was unhappy with it and it was reasonable for her to do so.

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Final decision

12. We will not investigate Mrs X’s complaint because it was reasonable to use her appeal rights.

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Investigator's decision on behalf of the Ombudsman