Summary: We cannot investigate this complaint that the Council was at fault in the process of assessing the complainant’s child’s education, health and care needs and has issued a flawed Education Health and Care (EHC) plan. The complainant has used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) and the courts have decided that the Ombudsman cannot intervene where the right to appeal has been used.

The complaint

1. The complainant, Miss X, complains that the Council was at fault in the process of assessing her child’s education, health and care needs and has issued a flawed Education Health and Care (EHC) plan.

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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. Miss X’s child has special educational needs and an EHC plan. Miss X complains that, when the draft EHC plan was issued, it failed to identify and address her child’s needs. She says that the Council’s case officer refused to consult her choice of specialist provision, and failed to abide by an agreement to meet with her while the EHC plan was at draft stage.
10. Miss X complains that, as a result of the fault on the Council’s part, the final EHC plan is flawed. Specifically, she says it names a mainstream school which cannot meet her child’s needs. As a result, he does not have an appropriate educational placement. She has used her right to appeal to the Tribunal.
11. The Ombudsman cannot investigate Miss X’s complaint. This is because the matters about which she complains are closely related to the content of the EHC plan. She says the fault she identifies on the Council’s part has led to the issue of an EHC plan which does not meet her child’s needs. That is not a matter on which we can express a view. Miss X’s recourse was to use her right to appeal to the Tribunal.
12. The fact that Miss X has used her right to appeal means that, by law, we cannot intervene. 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. This means matters relating to the EHC plan’s content cannot be investigated. There is no discretion available to us.

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Final decision

13. We cannot investigate Mrs 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