Summary: We cannot investigate this complaint about an Education, Health and Care Plan and the Council’s investigation into a complaint about it because the complainant has used her right to appeal to the Tribunal. The law says we cannot investigate.

The complaint

1. Miss X complains the Council failed to ensure the provision and support in her child’s Education, Health and Care (EHC) Plan was being provided by the school and it failed to investigate her complaint properly.
2. Miss X requests her child’s EHC Plan is reviewed and rewritten so it accurately reflects her child’s needs, the Council to consider a specialist placement, an apology and financial redress.

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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. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

5. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
6. 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)
7. 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

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

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My assessment

10. We will not start an investigation into Miss X’s complaint.
11. Miss X has complained to the Council about the school’s actions in relation to the delivery of the provision outlined in her child’s EHC Plan. We cannot investigate the school’s actions. Miss X can complain to the school directly about her concerns.
12. Miss X is unhappy with the wording used by the Council in her child’s EHC Plan when specifying what provision is required to meet their needs. Parents who are unhappy with the contents of an EHC Plan have a right to appeal to the Tribunal. It is the mechanism set up by Parliament for parents to challenge such decisions. We expect parents to use their right of appeal unless it is unreasonable for them to do so.
13. If Miss X is unhappy with the contents of the EHC Plan, specifically Section F which outlines the provision, it is reasonable for her to use her right to appeal to the Tribunal. The Tribunal can direct the Council to make amendments to the EHC Plan, we cannot. I understand Miss X has appealed Sections B and F of the Plan to the Tribunal.
14. 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)
15. 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.
16. Miss X complains about the way the Council responded to her complaint. We will not investigate how the Council dealt with Mrs X’s complaint as it is not a good use of public resources to investigate complaints about complaint handling when we are not looking at the substantive issue.
17. The Council did uphold some aspects of Miss X’s complaint and it has offered remedy payments for the injustice caused of £1000. An investigation by the Ombudsman could not achieve anything more for Miss X.

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Final decision

18. We cannot investigate Miss X’s complaint because she has used her right to appeal to the Tribunal and we cannot achieve the outcome she wants and further investigation would not lead to a different outcome.

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Investigator's decision on behalf of the Ombudsman