Summary: We cannot investigate Mrs X’s complaint about the Council’s decision regarding the school setting named in her child’s Education, Health and Care plan. This is because Mrs X has used her right of appeal against this decision.

The complaint

1. Mrs X complains the Council named an unsuitable school setting in her child’s Education, Health and Care (EHC) plan which left her child without appropriate support. She appealed against the decision and the Council has since agreed to change the school setting listed in the child’s EHC plan. Mrs X now wants the Council to compensate her for the education she believes her child lost while attending an unsuitable school.

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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 Mrs X and the Council.
6. I also considered the Ombudsman’s Assessment Code.

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My assessment

7. As set out at Paragraph 3, once someone has used their right of appeal to challenge the contents of an EHC plan we cannot investigate any complaint about the same matter. This applies from the point the appeal rights were available to when the Tribunal issues its decision or when the appeal is withdrawn or conceded. We are also barred from looking at anything linked to the matter appealed. So, where a parent has appealed the school named in an EHC Plan, we cannot look at any alleged failings in the assessment or consultation process leading to that decision. We also cannot look at any alleged loss of education which is linked to a disagreement over the suitability of the school named.
8. Here, Mrs X appealed to the Tribunal but before the appeal hearing the Council conceded the appeal and agreed to make changes to the EHC plan, including the type of setting listed in Section I. Because Mrs X has used her right of appeal, her complaint about the school setting decision is outside our jurisdiction. We have no discretion on this matter.
9. For the same reason, we cannot consider her complaint about any alleged loss of education caused by the suitability of the school setting. We appreciate this may be frustrating for Mrs X but due to the restrictions set out above there will be cases where there may be 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). 
10. The Council’s duty in this case was to secure the provision as set out in the EHC plan. The evidence shows the Council arranged education in line with the prior EHC plan. It did not need to arrange additional or alternative provision simply because Mrs X disagreed with the type of setting named. Once the Council amended the plan it arranged suitable educational provision to meet the requirements of the amended plan and we cannot say it should have done this any sooner.

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Final decision

11. We cannot investigate Mrs X’s complaint because she has used her right of appeal to the Tribunal, and the Council has arranged educational provision as set out in the EHC plan.

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Investigator's decision on behalf of the Ombudsman