Summary: We will not investigate this complaint about the process followed by the Council in reaching its decision about the special educational needs (SEN) provision required for Mr X’s child. How the Council reached its decision is closely linked to the decision itself, in respect of which Mr X has used his right to appeal to the Special Educational Needs and Disability Tribunal.

The complaint

1. Mr X said the Council’s process for considering his child’s special educational needs was flawed and not transparent. He said it did not do what it agreed in mediation and its communications were poor.

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The Ombudsman’s role and powers

2. 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)
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…”.

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How I considered this complaint

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

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My assessment

7. We cannot investigate the content of the Education Health and Care (EHC) Plan the Council issued. Mr X has exercised his right to appeal against it to the SEND Tribunal. The matters Mr X complains of relate to how the Council arrived at its decision about the nature of his child’s SEN and the content of the EHC Plan. They are closely linked to matters subject to the SEND Tribunal and we will not investigate them.

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Final decision

8. We will not investigate Mr X’s complaint because the matters he complains of are closely linked to matters in respect of which he has exercised his right to appeal to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman