Summary: We cannot investigate Ms X’s complaint about an Education Health and Care Plan assessment carried out for, and the information provided to, a Tribunal.

The complaint

1. Ms X says the Council should not have organised for a school officer to have observed Y without their consent and that the Council gave a Tribunal inaccurate information.

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The Ombudsman’s role and powers

2. 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)
3. 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…”.
4. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

5. I considered information provided by Ms X which includes the Council’s replies to her.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Ms X’s child, Z, has an Education Health and Care Plan (EHC Plan). Ms X disagreed with it and appealed to the Tribunal. During that appeal Ms X says the Council failed to give accurate information. She also says the Council arranged for an officer from a school to observe Z without their consent. She says this all led to the Tribunal naming the wrong school setting.
8. We cannot investigate why the Tribunal reached its decision, this includes the evidence presented to it.
9. The Council has a duty to assess children for EHC Plans. That will inevitably include observation by professional and prospective schools. We are unlikely to find faut in the Council doing so here.

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Final decision

10. We will not investigate Ms X’s complaint because we cannot investigate the information given to a Tribunal nor the reasons it reached its decision.

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Investigator's decision on behalf of the Ombudsman