Summary: We will not investigate Mr X’s complaint about the Council’s handling of his request that it issue his child with an Education, Health and Care Plan. Mr X appealed to the Tribunal which places this part of his complaint outside of our jurisdiction. There is not enough evidence of fault by the Council to warrant us investigating Mr X’s claim the Council failed to provide his child with sufficient nursery education.

The complaint

1. The complainant, whom I shall refer to as Mr X, complained the Council wrongly refused his request that it issue his child with an Education, Health and Care Plan (EHC Plan). Mr X says the Council’s actions meant he had to appeal to a tribunal incurring avoidable expenses. Mr X also complains that because of SEN budget cuts his child only received 15 hours of nursery education. Mr X says his child was entitled to 30 hours.

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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 cannot investigate the council’s conduct during an appeal. This includes anything a complainant could have raised with the Tribunal at any stage of the appeal, or which the Tribunal has considered on its own initiative, or which could have been a part of the Tribunal’s deliberations in resolving the appeal (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)  
6. 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 not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

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

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My assessment

9. We will not start an investigation into Mr X’s complaint.
10. Parents who want to challenge a council’s decision not to assess their child for an EHC Plan have a right to appeal to the Tribunal. Once a parent has used that right, we are barred from looking at the matter appealed or anything closely linked – such as the decision-making process. We also have no powers to consider the conduct of officers involved in the appeal or the expenses a parent might incur.
11. Mr X used his right of appeal. This places Mr X’s complaint about the Council refusing to assess his child outside our jurisdiction with no discretion. This applies from when the appeal rights were available until the appeal was decided. We have no powers to consider this matter.
12. Turning to Mr X’s complaint about nursery provision, the Council has said his child was automatically entitled to 15 hours per week. It has said some parents are entitled to 30 hours of provision, but they need to apply. If eligible an 11-digit code is generated. This then needs to be given to the nursery provider and any extra SEN funding will also follow. The Council said an 11-digit code was never submitted for Mr X’s child.
13. Based on the evidence available there is not enough evidence of fault in the Council’s handling of the nursery entitlement issue to warrant our involvement. It provided the required 15 hours and there was no application for the extra entitlement. We will not therefore investigate.

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Final decision

14. We will not investigate Mr X’s complaint because he has used his right of appeal and there is not enough evidence of fault.

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Investigator's decision on behalf of the Ombudsman