Summary: We will not investigate this complaint about the Council failing to secure the provision outlined in an Education, Health and Care Plan because the matter overlaps with a SEND Tribunal Appeal.

The complaint

1. Miss X complains on behalf of Mr Y that the Council failed to secure the provision specified in Mr Y’s Education, Health and Care (EHC) Plan between July and September 2024. Miss X says this has resulted in a loss of provision for Mr Y.

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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 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.
4. 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)
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)

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How I considered this complaint

6. I considered information provided by Miss X and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Miss X complains the Council failed to secure the provision in Mr Y’s EHC Plan from July 2024 to September 2024. The Council issued a final EHC Plan for Mr Y in July 2024. The right to appeal this EHC Plan was exercised and the Council received notification of the lodged appeal on 11 September 2024. The sections of Mr Y’s EHC Plan that were appealed were his special educational needs (Section B), the educational provision (Section F) and the placement (Section I).
9. We cannot investigate the alleged failure to arrange provision in Mr Y’s EHC Plan. Miss X has appealed to the SEND Tribunal about the provision specified in the Plan. The alleged fault is directly linked to the appeal. We have no power to look at any complaint that overlaps with a SEND Tribunal Appeal.

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Final decision

10. We will not investigate Miss X’s complaint because she has used her right to appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman