Summary: We cannot investigate this complaint about the content of an Education, Health and Care Plan and the lack of provision secured by the Council because it was reasonable for the complainant to use her right to appeal to the First-Tier (Special Educational Needs and Disability) Tribunal.

The complaint

1. Mrs X complains the Council failed to secure the educational provision as outlined in Section F of her son’s Education, Health and Care (EHC) Plan and it has failed to produce a Plan that accurately reflects her son’s needs.
2. Mrs X requests the Council amends Section F of her son’s EHC Plan to accurately reflect his needs. She also requests the Council improves its services and it acknowledges the failures in securing the Section F provision.
3. Mrs X also complains about the way the Council investigated her concerns.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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 any injustice is not significant enough to justify our involvement, or we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
6. 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)
7. 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.

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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. We will not investigate Mrs X’s complaint any further.
11. 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. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207). The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.
12. The issue at the heart of the complaint is Mrs X’s son’s EHC Plan does not accurately reflect his needs and he is not receiving the correct provision. Mrs X is of the view Section F (the provision) of the EHC Plan requires amending. Mrs X is also of the view that her son’s placement may also be unsuitable.
13. Parents who want to challenge the content of an EHC Plan have a right to appeal to the Tribunal. It is the mechanism set up by Parliament for parents to challenge such decisions. We expect parents to use this right unless it is not reasonable for them to do so. The Tribunal can order Councils to change EHC Plans. This is not something we can do and so we cannot achieve the outcome Mrs X wants. The Council’s decision-making regarding provision is directly linked to the content of the EHC Plan and cannot be separated. It was reasonable for Mrs X to use her right of appeal and so we cannot investigate.
14. I understand there was some delay in the annual review process. I acknowledge this must have caused frustration to Mrs X but the injustice from this is not significant enough to warrant us investigating.
15. Mrs X is also unhappy about the way the Council investigated her concerns. We will also not investigate how the Council dealt with Mrs X’s complaint as it is not a good use of public resources to investigate complaints about complaint handling when we are not looking at the substantive issue.

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Final decision

16. We cannot investigate Mrs X’s complaint because it was reasonable for her to appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman