Summary: We cannot investigate Mrs X’s complaint about the Council’s handling of her child’s Education, Health and Care Plan. The law prevents us from investigating complaints where a person has appealed to a tribunal about the same matter. For the rest, any injustice caused is not significant enough to justify our involvement and we cannot achieve the outcome Mrs X wants.

The complaint

1. Mrs X complained about the Council’s handling of her child’s Education, Health and Care (EHC) Plan. Mrs X is unhappy with how the Council decided the content of the EHC Plan.
2. Mrs X said this caused distress and led to her paying for legal representation when appealing to tribunal.
3. Mrs X wants the Council to acknowledge its errors, review its processes and reimburse her for legal costs.

Back to top

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 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)
6. 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.
7. 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))

Back to top

How I considered this complaint

8. I considered information provided by Mrs X and the Council.
9. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

10. We cannot investigate the part of Mrs X’s complaint about the content of the EHC Plan, and how the Council decided its content. Parents who want to challenge decisions about the content of an EHC Plan have a right of appeal to the SEND Tribunal. It is the mechanism set up by Parliament for parents to challenge such decisions. Mrs X used her right of appeal.
11. The law says when a parent has appealed to a tribunal, the matter appealed, or anything closely linked, are outside our jurisdiction. This includes the content of the EHC Plan if appealed and the Council’s decision-making process. This exclusion applies from when the appeal rights were available to when the Tribunal issued its decision, which in this case was when the Council and Mrs X resolved the matter prior to the hearing.
12. We will also not investigate the part of Mrs X’s complaint about the Council’s failure to secure special educational provision for the child. I have considered the period this relates to and have decided it does not represent a significant enough injustice to warrant our investigation.
13. The Department of Education and the Tribunal service issue parent guides to the EHC process which are publicly available. Free advice is available via Special Educational Needs and Disabilities Information, Advice and Support Services (SENDIASS) which is publicly funded. The Government’s intention is that families should not need legal advice to use the Tribunal process.
14. As it was Mrs X’s choice to instruct legal advisors, we cannot order the Council to reimburse her for legal costs incurred. We cannot achieve the outcome that Mrs X wants from complaining to us.

Back to top

Final decision

15. We cannot investigate Mrs X’s complaint because the law prevents us from investigating complaints when someone has appealed to a tribunal about the same matter. For the rest, any injustice is not significant enough to warrant our involvement, and we cannot achieve the outcome Mrs X wants.

Back to top

Investigator's decision on behalf of the Ombudsman