Summary: We cannot investigate this complaint about the Council’s conduct regarding an Education, Health and Care Plan. Mr X’s complaint cannot be separated from a First-Tier tribunal appeal.

The complaint

1. Mr X complained about the Council’s conduct when dealing with his child’s Education, Health and Care (EHC) Plan.
2. Mr X said the Council shared misleading information with a school which led to it withdrawing an offer of a place to his child. Mr X also said the Council did not adhere to First-Tier tribunal timeframes.
3. Mr X said the Council refused to consider his complaint about this, incorrectly stating the matter was linked to a First-Tier tribunal appeal.
4. Mr X wants the Council to properly consider his complaint about its conduct.

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The Ombudsman’s role and powers

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 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)

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How I considered this complaint

7. I considered information provided by Mr X and the Council’s reply to him.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. Mr X’s child, Y, has an EHC Plan. Mr X said the Council engaged in conduct lacking good faith in its dealings with a prospective school for Y and in not meeting Tribunal timeframes.
10. The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699 (‘Tribunal Procedure Rules’) give the Tribunal the power to do the following: 

• Regulate its own procedure. The Tribunal Procedure Rules give the Tribunal extensive case management powers. 
• Take ‘such action as it considers just’ if a party fails to comply with a requirement in the Tribunal Procedure Rules, a Practice Direction or a direction by the Tribunal. 
• Make an order for costs if it considers a party has acted unreasonably in bringing, defending or conducting proceedings. 

11. 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).
12. We cannot investigate the council’s conduct during an appeal, or about how it decided on what the content of Y’s plan should be, including how it consulted with schools. 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)  
13. The Tribunal has powers to make orders about conduct, delay and other failings. None of Mr X’s complaint can be separated from the Tribunal process so we cannot investigate.

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Final decision

14. We cannot investigate Mr X’s complaint because the matters he complains about cannot be separated from a Tribunal appeal.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman