Summary: We cannot investigate this complaint about the Council’s actions which led to an appeal of an Education Health and Care Plan or the complaint about the Council’s actions during the appeal process. This is because Miss X has used her right of appeal and we cannot investigate the Council’s conduct during an appeal.

The complaint

1. Miss X complains the Council’s failures in decision making and poor communication led to her having to appeal her child’s Education Health and Care Plan (“EHC Plan”), further that it prolonged the appeals process. She also complains the Council delayed replying to her Subject Access Request (“SAR”).

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The Ombudsman’s role and powers

2. 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.
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. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 
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)  
6. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about a Council’s handling of an information request. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

7. I considered information provided by Miss X.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. Miss X appealed the provision and the placement in her child’s EHC Plan.
10. Miss X is unhappy with the lack of transparency in the Council’s decision making on the content of the EHC Plan and its poor communication which resulted in her having to appeal. I cannot investigate this complaint because the main injustice caused by any fault is that the EHC Plan did not meet Miss X’s child’s needs and this was the subject of an appeal.
11. Miss X is unhappy she had to go through the appeal and the time this took. However, Parliament set up the appeal process and it is not within my remit to criticise this. I also cannot investigate the Council’s conduct during the appeal.
12. The Information Commission is better placed to consider a complaint about the Council’s delay in responding to an SAR.
13. It is not a proportionate use of our resources to investigate the Council’s complaint handling when we cannot investigate the substantive matters.

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Final decision

14. We cannot investigate Miss X’s complaint because she has used her right of appeal.

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Investigator's decision on behalf of the Ombudsman