Summary: We will not investigate this complaint about the reimbursement of costs for privately obtained therapy reports because the complainant has used her right to appeal to the Tribunal which places the complaint outside our jurisdiction.

The complaint

1. Mrs X complains the Council is refusing to reimburse her for two reports she obtained that were used in her child’s final education, health and care (EHC) Plan. Mrs X says she was forced to obtain these reports because they were required to inform the final EHC Plan and secure a place at a suitable setting.

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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. 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…”.
5. 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

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

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My Assessment

8. The Council issued a final EHC Plan for Mrs X’s child and provided her with her right to appeal to the SEND Tribunal. Mrs X was unhappy with the content of the Plan and used her right of appeal. The Council conceded and issued a further EHC Plan.
9. Mrs X paid for Occupational Therapist (OT) and Speech and Language Therapy (SaLT) reports for her child’s EHC Plan. The second EHC Plan used these two reports. Mrs X has requested the Council reimburses her with the cost of the reports.
10. We cannot investigate this complaint because Mrs X appealed her child’s EHC Plan to the Tribunal. The content of the EHC plan formed part of Mrs X’s appeal. By law, this places all matters which relate to the EHC Plan outside our jurisdiction. Therefore, we have no power to investigate.

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Final decision

11. We will not investigate Mrs X’s complaint because she has used her right to appeal to the SEND Tribunal so we have no power to do so.

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Investigator's decision on behalf of the Ombudsman