Summary: We cannot investigate Mr X’s complaint about matters relating to his child’s Education Health and Care plan. This is because Mr X has used his right of appeal to the SEND Tribunal.

The complaint

1. Mr X complains about how the Council dealt with matters concerning the annual review of his child’s Education Health and Care (EHC) plan. Mr X complains that the Council did not commission suitable assessments and failed to fully understand his child’s needs.

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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 – SEND) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
5. We cannot investigate the council’s conduct during an appeal. This includes anything a complainant could have raised with the Tribunal at any stage of the appeal, or which the Tribunal has considered on its own initiative, or which could have been a part of the Tribunal’s deliberations in resolving the appeal (R v Local Commissioner ex parte Bradford [1979]) and 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

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

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My assessment

8. I cannot investigate Mr X’s complaint because he has used his right of appeal to the SEND Tribunal about the contents of his child’s EHC plan. The alleged injustice caused by the Council’s failure to arrange assessments or understand the needs of Mr X’s child is that the EHC plan does not meet his child’s needs, which is the subject of his appeal to the Tribunal. Furthermore, the Tribunal has wide powers to order reports to be completed.

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Final decision

9. We cannot investigate Mr X’s complaint because he has used his right of appeal to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman