Summary: We cannot investigate this complaint that the Council was at fault in placing the complainant’s child at a school which cannot meet his needs. This is because the complainant has used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability), and the law therefore prevents us from investigating.

The complaint

1. The complainant, Mrs X, complains that the Council was at fault in placing her child at a school which cannot meet his needs, compelling her to incur costs in challenging the placement.

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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) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
5. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal…such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.

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How I considered this complaint

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

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My assessment

8. Mrs X’s child has special educational needs. Mrs X complains that, in the course of an Education Health and Care Needs Assessment, the Council named an inappropriate school setting for her child. She says she was compelled to incur legal and other professional costs in order to successfully overturn the Council’s decision and obtain a place for her child in a school which met his needs. She wants the Council to reimburse these costs.
9. The Ombudsman cannot investigate Mrs X’s complaint. We cannot express a view on whether the school initially named in the Education Health and Care plan was appropriate. That is a matter where recourse was available by way of appeal to the Tribunal. The evidence Mrs X has provided shows that she has used her right of appeal. By law, the Ombudsman cannot intervene. This restriction applies whether or not the matter completed the appeal process.
10. The courts have held that this restriction applies to all matters which could themselves be considered during the Tribunal process. This includes the matters about which Mrs X complains, and the law therefore prevents us from investigating whether her costs were appropriately incurred. There is no discretion available to us.

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Final decision

11. We cannot investigate Mrs X’s complaint because she has used her right to appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman