Summary: We cannot investigate this complaint about the education, health and care plan process and the placement named in the plan 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. Mrs X complains the Council issued an Education, Health and Care (EHC) Plan for her granddaughter without following the correct process and it named an unsuitable setting.
2. Mrs X says her granddaughter will not be attending the setting named in the EHC Plan and she requests a suitable setting to be secured.

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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. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (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. 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…”.
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 the complainant and the Council.
9. I considered the Ombudsman’s Assessment Code.

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My assessment

10. Mrs X’s granddaughter has an EHC Plan maintained by the Council. Mrs X says the Council issued a final EHC Plan naming a mainstream setting and six weeks later it issued another EHC plan naming a specialist setting. Mrs X says the setting the Council has named is not a specialist setting but a Pupil Referral Unit and it is not appropriate for her granddaughter. She has used her right to appeal to the Tribunal.
11. Parents and guardians who are unhappy with the contents of an EHC Plan have a right to appeal to the Tribunal. It is the mechanism set up by Parliament for parents and guardians to challenge such decisions. We expect parents and guardians to use their right of appeal unless it is unreasonable for them to do so.
12. The Ombudsman cannot investigate Mrs X’s complaint. This is because the matters about which she complains are closely related to the content of the EHC plan. Mrs X’s recourse was to use her right to appeal to the Tribunal.
13. The fact that Mrs X has used her right to appeal means that, by law, we cannot intervene. 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. This means matters relating to the EHC plan’s content and the process followed by the Council cannot be investigated. There is no discretion available to us.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman