Summary: We cannot investigate this complaint about the Council’s handling of an annual review of an Education, Health and Care Plan. This is because 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, Mrs X, says she is unhappy at how the Council has handled the annual review of her child’s Education, Health and Care 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…”.

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How I considered this complaint

6. I considered information provided by the complainant.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Mrs X says the Council has not fulfilled its duty during an annual review of her child’s Education, Health and Care (EHC) Plan. She says the Council did not attend the annual review meeting and she is unhappy with changes made to the EHC Plan.
9. Mrs X says she would like her child to remain at the school he currently attends, but the provision does not meet his needs. She says the Council should provide funding for the extra provision for her child as agreed during mediation.
10. The matters Mrs X raises relate to the content of the EHC Plan. Mrs X has used her right of appeal to the Tribunal. 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. As such, the Ombudsman cannot consider the complaint.
11. Mrs X also complains about the Council’s handling of her complaints. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue. That is the case here.

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Final decision

12. We cannot investigate Mrs X’s complaint because she has used her right of appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman