Summary: We will not investigate Mr X’s complaint about evidence collected and presented to a Tribunal. We do not have jurisdiction to consider the evidence presented to a Tribunal. We cannot investigate matters which formed part of a Tribunal. We will also not investigate Mr X’s complaint about delay reviewing his child’s Educational Health and Care Plan. The remaining injustice is not significant enough to justify investigation.

The complaint

1. Mr X complains the Council obtained his child, Y’s views about college placements without speaking to Y’s parents. He says the views were presented in a tribunal. Mr X also complains the Council did not provide all evidence presented by Y’s parents to the tribunal. Mr X also complains of delays in reviewing Y’s Educational Health and Care (EHC) Plan.

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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 SEND Tribunal in this decision statement.
5. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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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. Mr X has a child Y who has an Educational Health and Care (EHC) Plan.
9. Mr X appealed the EHC Plan. In preparation for the appeal, the Council arranged for Y’s school to speak to Y to obtain their views on collage options (June 2024). Y’s views were then presented to the tribunal.
10. Mr X complains the Council did not speak to him before discussing placements with Y. Mr X says Y did not have the capacity to form a view on collage options and the questions caused him distress. Mr X also complains the Council did not provide all evidence presented by Y’s parents to the tribunal.
11. We cannot investigate matters which have formed part of a Tribunal. This includes the evidence given. This part of Mr X’s complaint falls outside our jurisdiction.
12. Mr X also complains of delays in carrying out Y’s EHC annual review.
13. The Council mistakenly said an annual review could not be carried out while there was an ongoing appeal. The Council realised this was incorrect and provided the correct information to Mr X and the school. The Council were then able to start the annual review process.
14. A Council is able to start the review process during an appeal, but they are not able to issue a final EHC Plan.
15. The issuing of Y’s final EHC Plan was not delayed by the Council’s mistake. The Council have apologised to Mr X for providing the uncertainty caused. There is insufficient remaining injustice to justify investigating this part of Mr X’s complaint.

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Final decision

16. We will not investigate Mr X’s complaint. We do not have jurisdiction to consider the evidence presented to a Tribunal and there is insufficient remaining injustice arising from matters within our jurisdiction.

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Investigator's decision on behalf of the Ombudsman