Summary: We cannot investigate this complaint about the Council’s provision of support in the complainant’s children’s Education Health and Care plans. 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 the Ombudsman cannot intervene where the right to appeal has been used.

The complaint

1. The complainant, Ms X, complains the Council failed to arrange statutory reviews of her children’s Education Health and Care (EHC) plans. She says the Council issued amended EHC plans that did not take into account her wishes and which reduced the amount of specialist support provided to her children. Ms X says this impacted negatively on her children’s development and caused her confusion, distress and financial hardship.

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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 and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Ms X says the Council did not follow the statutory process when it reviewed her children’s EHC plans after the family moved into the Council’s area. She says the Council issued amended EHC plans with reduced educational provision, meaning her children lost some support they were previously entitled to and receiving.
9. The matters Ms X raise relate to the content of her children’s EHC Plans. Ms 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, or connected to, or could have been part of, the appeal to the Tribunal. This applies to all matters relating to the content of the EHC plan, including the failure to carry out a review before issue. These matters can be considered by the Tribunal. As such, the Ombudsman cannot consider Ms X’s complaint.

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Final decision

10. We cannot investigate Ms 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