Summary: We cannot investigate this complaint about the Council’s decision not to amend an education, health and care plan and to name a mainstream school because the complainant has used his right to appeal to the Tribunal.

The complaint

1. Mr X complains the Council failed to amend his child’s education, health and care (EHC) Plan following an annual review. Mr X is unhappy with the Council’s decision to name a mainstream school in the EHC Plan. He says the EHC Plan is unsuitable and outdated.

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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 the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Mr X says his son requires a specialist school placement as recommended by professionals. The Council has continued to name a mainstream school. Mr X has exercised his right to appeal to the Tribunal. He has appealed Sections, B, F and I (the placement). Mr X wants the Council to amend the EHC Plan urgently. This is not an outcome we can achieve for Mr X. Parents who are unhappy with the contents of an EHC Plan have a right to appeal to the Tribunal. It is the mechanism set up by Parliament for parents to challenge such decisions.
8. 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)
9. We cannot investigate Mr X’s complaint because he has used his right of appeal to the Tribunal and this places the matter outside the Ombudsman’s jurisdiction by law, and we cannot intervene.

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Final decision

10. We cannot investigate Mr X’s complaint because he has exercised his right to appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman