Summary: We cannot investigate this complaint about the Council’s communication with the complainant and the content of her son’s 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).

The complaint

1. The complainant, Mrs X, complains that the Council failed to communicate with her properly about her son’s special educational needs, and issued a flawed Education Health and Care plan which does not meet his needs.

Back to top

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…”.

Back to top

How I considered this complaint

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

Back to top

My assessment

8. Mrs X’s son has an Education Health and Care (EHC) plan. Mrs X complains that the Council failed to amend it while it was in draft form and, as a result, it does not properly address her son’s needs. She used her right to appeal against the content of the EHC plan to the First-tier Tribunal (Special Educational Needs and Disability). At the point at which she complained to the Council, the appeal process was still underway.
9. Mrs X further complains that the Council failed to communicate with her appropriately. Specifically, she complains that it issued inaccurate information to the Tribunal and failed to respond reasonably to her contacts and subsequent complaint. The Council has accepted fault in communicating with Mrs X and has offered her a symbolic payment in recognition of this.
10. The Ombudsman cannot investigate Mrs X’s complaint. We can make no comment on whether the content of the EHC plan was appropriate or whether, as Mrs X argues, it should have been amended at draft stage. Mrs X has used her right to appeal to the Tribunal, and the law prevents us from investigating any matter which the Tribunal can consider. This means that, by law, we cannot investigate matters relating to the content of the EHC plan.
11. The courts have decided that this legal restriction also applies to a council’s actions during the appeal process. We cannot therefore investigate the Council’s communication with Mrs X or the Tribunal during the period covered by the complaint. There is no discretion available to us and we cannot intervene.

Back to top

Final decision

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

Back to top

Investigator's decision on behalf of the Ombudsman