Summary: We cannot investigate Mrs X’s complaint about the content and delivery of her child’s Education, Health and Care Plan because she appealed to a tribunal, and the law says we cannot investigate.

The complaint

1. Mrs X complains the Council failed to:
1. secure the content of her child, Y’s, Education, Health and Care (EHC) Plan;
2. provide alternative education to Y when they could not attend the school named in their EHC Plan; and
3. name and fund her preferred school for Y’s EHC Plan.
2. Mrs X said the matter caused her distress and frustration.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. 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 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)

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How I considered this complaint

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

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My assessment

9. We cannot investigate Mrs X’s complaints. This is because the reason Y did not receive their education was because of Mrs X’s disagreement about the suitability of the school in section I of the EHC Plan. In addition, the school consultation process and the decision to later name a different school in the EHC Plan (which was not the school Mrs X wanted) all occurred during the SEND Tribunal process.
10. Because Mrs X used her right to appeal to the SEND Tribunal, and because the Tribunal has wide ranging powers to consider the suitability of the school and any updated information as part of its processes, the law says we cannot investigate this complaint.

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Final decision

11. We cannot investigate Mrs X’s complaint because she appealed to a tribunal.

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Investigator's decision on behalf of the Ombudsman