Summary: We cannot investigate this complaint about the Council’s failure to ensure the complainant had access to appropriate education. This is because his representative used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) on his behalf, and the matters about which he complains are bound up with those which were the subject of the appeal.

The complaint

1. The complainant, Mr X, complains that the Council failed to ensure that he had access to appropriate education between July 2022 and September 2024.

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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. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal…such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.
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). 

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How I considered this complaint

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

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My assessment

9. Mr X is an adult who has an Education Health and Care (EHC) plan. He is represented in making this complaint by his mother, Ms X. The evidence Ms X has provided shows that the Council declined to support Mr X continuing in education after July 2022 and proposed to cease his EHC plan. This decision was the subject of an appeal to the Tribunal. Mr X subsequently moved to another council’s area and started college in September 2024.
10. Ms X says the decision to refuse to support her son continuing in education caused significant detriment to his welfare, and the welfare of his family.
11. The period covered by the complaint begins in 2022 and ends when Mr X’s EHC plan was transferred to his new home area in April 2024. At this point the Council ceased to have responsibility for his education.
12. The law prevents the Ombudsman from investigating Mr X’s complaint. This is because Ms X has used her right to appeal to the Tribunal on his behalf. 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.
13. This means that if a young person is not attending education, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement with the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision. In this case, the reason for the appeal was the Council’s decision to cease to maintain the EHC plan, so the restriction applies.
14. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the appeal process ends.
15. The evidence Ms X has provided shows that the appeal process was underway until at least April 2024, at which time the EHC plan was transferred. That being the case, the Ombudsman cannot consider the period covered by the complaint. This is the case whether or not the Council was responsible for all or part of the delay, as the courts have found that we cannot investigate a council’s conduct during an appeal. There is no discretion available to us.

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Final decision

16. We cannot investigate Mr X’s complaint because Ms X used her right of appeal to the Tribunal on his behalf.

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Investigator's decision on behalf of the Ombudsman