Summary: We cannot investigate Miss X’s complaint about the Council’s handling of her child’s Education, Health and Care Plan. This is because she has used her alternative right of appeal to the Tribunal.

The complaint

1. Miss X complains of the Council’s handling of her child’s Education, Health and Care (EHC) Plan. She says:
• The EHC Plan contained another child’s name and personal information;
• The EHC Plan contained incorrect information about her child’s needs and proposed an unsuitable school.
2. Miss X says the Council’s errors left her child in unsuitable education for an extended period. She wants the Council to:
• Investigate the data breaches;
• Issue an amended EHC Plan that accurately reflects her child’s needs and place her child in a suitable school; and
• Apologise and consider financial compensation.

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The Ombudsman’s role and powers

3. 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 another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
4. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. 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)
7. 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

8. I considered information provided by Miss X and the Council.
9. I considered the Ombudsman’s Assessment Code.

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My assessment

10. I will not investigate Miss X's complaint about the alleged data breaches. The Information Commissioner is better placed to consider complaints about data protection and has powers to investigate and, where appropriate, take enforcement action.

EHC Plan

11. If someone disagrees with the contents of an EHC Plan, they have a right of appeal to the Tribunal. Once someone has used that right, we cannot investigate complaints about the same matters or issues that are closely linked to the appeal. This applies from the point the appeal rights were available to when the Tribunal issues its decision or when the appeal is withdrawn or conceded.
12. Miss X appealed to the Tribunal about her child's EHC Plan. Therefore we cannot investigate her complaints about the educational needs described in the EHC Plan, the school named, or matters closely connected to those issues. We have no discretion to investigate these matters.
13. For the same reason, we cannot consider her complaint about any alleged loss of education caused by the suitability of the school setting. We appreciate this may be frustrating for Miss X but due to the restrictions set out above there will be cases where there may be 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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Final decision

14. We cannot investigate Miss X’s complaint as she has used her alternative right of appeal to the Tribunal. Her data breach concerns are best dealt with by the Information Commissioner.

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Investigator's decision on behalf of the Ombudsman