Summary: We cannot investigate this complaint about the Education, Health and Care Plan process. Mrs X has appealed to the Tribunal and that places the complaint outside our jurisdiction.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complained the Council finalised her child’s Education, Heath and Care Plan (EHC Plan) without considering her views. Mrs X says she complained before she appealed to the Tribunal, but the Council is refusing to consider her complaint because of the appeal.

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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.
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 there is no worthwhile outcome achievable by our investigation. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
6. The courts have said we can decide not to investigate a complaint about any action by an organisation concerning a matter which the law says we cannot investigate. (R (on the application of M) v Commissioner for Local Administration [2006] EHWCC 2847 (Admin))
7. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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How I considered this complaint

8. I considered information provided by the complainant and the Council.
9. I considered the Ombudsman’s Assessment Code.

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My assessment

10. We will not start an investigation into Mrs X’s complaint.
11. When a parent has used their right of appeal to the Tribunal it places the matter appealed outside our jurisdiction. The law prevents from looking at anything linked to the matter appealed. This includes the content of the EHC Plan and how the Council decided it. We therefore have no powers to investigate this part of Mrs X’s complaint.
12. Mrs X is also unhappy with the Council’s handling of her complaint. But we are barred from looking at anything linked to the appeal from the point the appeal rights were available. Mrs X only complained once the final EHC Plan was issued and her appeal rights were available. The complaint is obviously linked to the appeal. We therefore have no powers to look at this point. Even if we could separate the two points we could not achieve anything. This is because the matter the complaint flows from is outside our jurisdiction.

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Final decision

13. We cannot investigate Mrs X’s complaint because she has appealed to the Tribunal.

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Investigator's decision on behalf of the Ombudsman