Summary: We will not investigate this complaint about the placement named in an education health and care plan because it was reasonable for the complainant to have used her right of appeal to a Tribunal.

The complaint

1. Mrs X complains the Council has failed to secure the provision specified in her daughter’s Education, Health and Care (EHC) Plan and it has not named a suitable placement. Mrs X says she had to secure a loan for her daughter to attend an independent college and she would like the Council to reimburse these fees, name this college in the EHC Plan and secure the provision for her for two academic years. Mrs X would also like an apology from the Council.

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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 law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (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. 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)
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 Mrs X 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 Mrs X’s complaint. The issue at the heart of the complaint is the placement named in her daughter’s EHC Plan.
10. Parents who are unhappy with their child’s EHC Plan have a right of appeal to the Tribunal. We expect parents to use that right unless it is unreasonable for them to do so. It is the mechanism set up by Parliament for parents to challenge the educational provision or the setting named in their child’s EHC Plan.
11. In this case it was reasonable for Mrs X to challenge the placement named by appealing to the Tribunal. This is because the Tribunal can decide if an EHC Plan should be amended and a different placement named. That is not something we can do.
12. The fact that it would have been reasonable for Mrs X to appeal means that the content of the EHC Plan, and matters which are connected to the content, do not fall to be investigated by the Ombudsman. This is because 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. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right. I cannot investigate the education provision in place for Mrs X’s daughter following the Council’s decision to name the placement as it is not separable from that right of appeal.
13. Because it was reasonable for Mrs X to appeal and we cannot achieve the outcome she requested, we will not consider her complaint.

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Final decision

14. We will not investigate Mrs X complaint because it was reasonable for her to appeal and we cannot achieve the outcome she has requested.

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Investigator's decision on behalf of the Ombudsman