Summary: We will not investigate this complaint about the college named in the Education, Health and Care Plan and the loss of educational provision because it was reasonable for the complainant to have used her right of appeal to a Tribunal.

The complaint

1. Ms X complains the Council named an unsuitable college in her son, Y’s, Education, Health and Care (EHC) Plan and it failed to provide the educational provision as outlined in the Plan. Ms X says this has had a detrimental impact on her son and her physical and mental health.

Back to top

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. 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. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
6. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past 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). 

Back to top

How I considered this complaint

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

Back to top

My assessment

9. In March 2024, the Council issued a final EHC Plan for Y and named Placement B. Mrs X was unhappy with Placement B being named because a professional working with Y had said a mainstream setting would not be suitable for him. We have previously considered Mrs X’s complaint about the Council’s decision to name Placement B in Y’s EHC Plan, and we decided it would have been reasonable for Mrs X to have appealed to the Tribunal. That decision stands.
10. The Tribunal can decide if an EHC Plan should be amended and a different college named. We cannot. The Tribunal has broad powers and can review the Council’s reasons for naming the college, as well as any evidence relied on. It was reasonable for Mrs X to have appealed the decision and so we will not investigate.
11. Mrs X complains the provision in Y’s EHC Plan was not delivered by Placement B. The fact that it would have been reasonable for Mrs X to appeal means that the content of the EHC Plan, and matters which are connected to the content, do not fall to be investigated by the Ombudsman. This is because the courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right. I cannot investigate the education provision in place for Y following the Council’s decision to name the college as it is not separable from that right of appeal.

Back to top

Final decision

12. We will not investigate Ms X’s complaint because it was reasonable to appeal to the SEND Tribunal.

Back to top

Investigator's decision on behalf of the Ombudsman