Summary: We will not investigate this complaint about the Education, Health and Care Plan process and the education provided to Mrs X’s son. This is because Mrs X appealed to the First-tier Tribunal (Special Educational Needs and Disability). This places the matter outside our jurisdiction.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complained the Council refused to name her preferred school in her son’s Education, Health and Care Plan (EHC Plan). Mrs X says the Council named an inappropriate school leaving her son without a suitable education. Mrs X says the Council’s actions forced her to appeal to the Tribunal, with the Council eventually conceding the appeal. Mrs X is unhappy with the Council’s conduct during the appeals process and its handling of her 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. 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.

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How I considered this complaint

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

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My assessment

7. We will not start an investigation into Mrs X’s complaint.
8. Parents who are unhappy with the EHC Plan process have a right of appeal to the 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. Parents can appeal the educational provision or the setting named.
9. Mrs X has used her right of appeal to the Tribunal to challenge the school named in her son’s EHC Plan. 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
10. Anything linked to the EHC Plan which was appealed to the Tribunal is therefore outside our jurisdiction. This includes the setting named and the provision included in the EHC Plan. We have no discretion to consider such matters. This also applies to any lack of education claimed by Mrs X which was a consequence of the EHC Plan appealed.
11. The period we cannot investigate applies from when the appeal rights were available to when the Tribunal issued its decision - or the appeal was withdrawn or conceded. The same restrictions apply where someone had a right of appeal to the Tribunal, and it was reasonable for them to have used that right.
12. We also cannot investigate the Council’s conduct during the appeal. This includes any evidence given or provided by the Council and its decision to concede the appeal. Some parents will incur significant legal and expert fees during the appeal process. We cannot investigate this as the Tribunal has powers to consider and/or award costs as part of the appeal. (The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699, Rule 10)
13. Mrs X asked the Tribunal about costs, but it decided not to make an order. That does not change our jurisdiction. Mrs X’s complaint about the EHC Plan process is not one we can consider.
14. Mrs X is also unhappy with the Council’s handling of her complaint. But it is not a good use of our resources to consider complaint handling in isolation if we are not going to look at the issue which led to the original complaint. That applies here.

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Final decision

15. We cannot investigate Mrs X’s complaint because she has appealed to the Tribunal and so it is outside our jurisdiction.

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Investigator's decision on behalf of the Ombudsman