Summary: We cannot investigate Mrs X’s complaint about the Council’s failure to secure the provision for her child because Mrs X has used her right to appeal to a Tribunal and the law says we cannot investigate.

The complaint

1. Mrs X complains the Council failed to secure the provision outlined in Section F of her daughter’s Education, Health and Care (EHC) Plan, including a tutor and mental health provision. Mrs X says this failure caused a loss of provision, avoidable distress and financial strain because she has had to arrange the provision herself.

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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. 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). 

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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. We cannot investigate Mrs X’s complaint. This is because she has used her right to appeal the content of her daughter’s EHC Plan to the Tribunal.
9. 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)
10. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman