Summary: We will not investigate this complaint about the content of an education, health and care plan because it is reasonable for the complainant to use her right to appeal to the Tribunal.

The complaint

1. Mrs X complains the Council failed to make changes to her daughter’s education, health and care (EHC) Plan despite saying it would make amendments. Mrs X says the Council addressed delays in the EHC Plan process in its response to her complaint but it failed to address her concerns about the content of the Plan.
2. Mrs X wants the Council to amend the EHC Plan to reflect her daughter’s needs and to specify how those needs will be met.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. 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.
6. 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)
7. 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

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

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My assessment

10. The Council has addressed the delays in the EHC Plan process and offered a financial remedy for the injustice caused. There is nothing further we can achieve for Mrs X with regards to this aspect of her complaint.
11. The Council has not addressed Mrs X’s complaint about the content of the EHC Plan in its final response. The outcome Mrs X is seeking is for the EHC Plan to accurately reflect her daughter’s needs. 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. We expect parents to use their right of appeal unless it is unreasonable for them to do so.
12. If Mrs X is unhappy with the content of the EHC Plan issued by the Council, it is reasonable for her to use her right to appeal to the Tribunal. The Tribunal can direct changes to the EHC Plan, we cannot.

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Final decision

13. We will not investigate Mrs X’s complaint because it is reasonable for her to use her right of appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman