Summary: We cannot investigate this complaint that the Council was at fault in the handling of her son’s transfer to secondary education and in the course of her appeal to the First-tier Tribunal (Special Educational Needs and Disability).

The complaint

1. The complainant, Mrs X, complains that the Council was at fault in the process of amending her son’ Education Health and Care (EHC) plan and in its response to her subsequent appeal.

Back to top

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…”.

Back to top

How I considered this complaint

6. I considered information provided by the complainant and the Council.
7. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

8. Mrs X’s son has an EHC plan. Her complaint concerns the Council’s actions in the process of his transfer between the primary and secondary phases of education.
9. Mrs X complains that the Council named an inappropriate school for her son in his EHC plan despite knowing it could not meet his needs, compelling her to appeal to the Tribunal. She says the Council subsequently conceded the appeal, having failed to provide the required evidence to allow the matter to proceed.
10. Mrs X says the Council’s administrative failures and failure to communicate with her appropriately caused her significant distress and uncertainty. The evidence shows that the Council has accepted that it was at fault, but Mrs X does not believe the remedy it has offered is proportionate to the impact of the fault.
11. The Ombudsman cannot investigate Mrs X’s complaint. This is because she has used her right to appeal to the Tribunal. The law says we cannot investigate the matter about which Mrs X appealed, which is the school the Council named in the EHC plan. The courts have decided that this restriction also applies to related matters, such as the process by which the Council decided which school to name and its conduct during the appeal process. We cannot therefore intervene. There is no discretion available to us.

Back to top

Final decision

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

Back to top

Investigator's decision on behalf of the Ombudsman