Summary: We cannot investigate this complaint about the Council’s handling 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 her child’s special educational needs are not being met and is unhappy with the Council’s handling 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 her child’s Education Health and Care (EHC) plan does not reflect her needs. She says her child has not attended school for more than a year and has only been provided with limited learning while at home.
9. Mrs X’s child remains on roll at a mainstream setting but she says this does not meet her needs and has asked for Education Other Than At School (EOTAS). The Council has not agreed to change to the EHC plan and says the child does not meet the threshold for EOTAS.
10. Mrs X says the school placement remains unsuitable. The matter turns on whether the Council deems the school placement suitable and the school is in a position to deliver specialist provision. The evidence shows the Council has liaised with the school and is satisfied with the efforts made under the school’s reintegration plan and the school place meets the child’s needs. That is not a matter on which the Ombudsman can express a view. It is a matter that Mrs X should address at Tribunal.
11. The matters Mrs X raises relate to or are closely related 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.

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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