Summary: We cannot investigate most of Mr X’s complaint about the named school in his child’s Education, Health and Care Plan or the Council’s consultations with special schools because Mr X appealed to a tribunal, and the law says we cannot investigate. We cannot investigate how the Council engaged in the tribunal process because the law says we cannot. We will not investigate the Council’s complaints handling because it is not a good use of public money to investigate complaint handling in isolation.

The complaint

1. Mr X complained the Council failed to:
1. name a suitable school in his child, Y’s, Education, Health and Care (EHC) Plan;
2. consult special schools in a timely way;
3. engage in a tribunal process in a procedurally correct manner;
4. respond to his complaint in line with its processes.
2. Mr X said the matter caused him distress and uncertainty. He said Y missed out on their education as a result.

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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. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect 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 an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

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

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My assessment

Failure to name a suitable school in section I of Y’s EHC Plan and consultations with special schools

9. We cannot investigate these complaints. The consequence of Mr X’s complaints that the Council failed to name a suitable school in section I, and the process by which the Council consulted with special schools, was appealed to and considered by the Tribunal.
10. Because Mr X used his right to appeal the suitability of the school in section I to the Tribunal, the law says we cannot investigate.
11. Because the Tribunal considered the suitability of the school in section I, we cannot investigate the process by which the Council consulted with special schools – the matter is too closely related to the issue of which school was most suitable for Y.

Engagement with the Tribunal process

12. We cannot investigate the Council’s conduct during an appeal. This includes anything a complainant could have raised with the Tribunal at any stage of the appeal, or which the Tribunal has considered on its own initiative, or which could have been a part of the Tribunal’s deliberations in resolving the appeal (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)

Poor complaints handling

13. 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. Consequently, we will not investigate the Council’s complaint handling because the tests in our Assessment Code are not met.

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Final decision

14. We cannot investigate most of Mr X’s complaint because he appealed to a tribunal, and the law says we cannot investigate. We cannot investigate part because the law says it is for the tribunal to manage how the Council engaged with it. We will not investigate the remainder because the tests in our Assessment Code are not met.

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Investigator's decision on behalf of the Ombudsman