Summary: We will not investigate this complaint about the way the Council assessed Mr X’s child’s special educational needs in issuing an Education Health and care Plan. Mr X used his right of appeal to a Tribunal and the matters he complains of are ancillary to that appeal.

The complaint

1. Mr X said the Council failed to ensure it had up-to-date reports about his child’s special educational needs when it issued an Education Health and Care (EHC) Plan for transfer to secondary school. He said this forced him to pay for up-to-date reports himself, and to have to appeal to a Tribunal, as well as causing his child significant distress.

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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. 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. 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

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

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My assessment

8. Mr X used his right of appeal to a Tribunal against the content of his child’s EHC Plan. How the Council arrived at that content is closely connected to the content itself. We are not able to act as an auxiliary to the Tribunal by making determinations about whether the Council should have sought new reports, or should have paid Mr X for the reports he commissioned.

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Final decision

9. We will not investigate Mr X’s complaint because he used his right of appeal to a Tribunal, and the matters he complains of are closely linked to the matters that were before the Tribunal. We cannot act in an auxiliary to the Tribunal.

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Investigator's decision on behalf of the Ombudsman