Summary: We will not investigate this complaint about the education, health and care plan process because the complainant has used her right to appeal to a Tribunal.

The complaint

1. Mrs X complains about the changes the Council made to her child’s Education, Health and Care (EHC) Plan and the way it made them. She says the final Plan has resulted in some provision being removed without consultation, deletion of health needs and inaccurate information regarding social care needs.
2. Mrs X requests amendments to the EHC Plan to include certain provisions, reimbursement for social care provision and service improvements.

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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. 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)
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. Mrs X’s complaints relate to the content of a final EHC Plan issued by the Council. Mrs X was provided with her right to appeal the content of the EHC Plan if she was unhappy with it. We will not investigate this complaint because Mrs X has exercised her right to appeal.
11. Mrs X has requested changes to be made to the EHC Plan. The Tribunal can direct changes to the EHC Plan, we cannot.

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Final decision

12. We will not investigate Mrs X’s complaint because she has used her right to appeal.

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Investigator's decision on behalf of the Ombudsman