Summary: We will not investigate Mrs X’s complaint about the Council’s refusal to issue her child with an Education, Health and Care Plan. This is because Mrs X has used her right of appeal to the First-tier Tribunal (Special Educational Needs and Disability).

The complaint

1. Mrs X complains the Council refused to issue her child with an Education, Health and Care (EHC) plan. She says the Council failed to obtain professional reports.

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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. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (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. 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)

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How I considered this complaint

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

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My assessment

8. Mrs X asked the Council to carry out an EHC needs assessment for her child. The Council carried out the assessment and decided not to issue an EHC plan.
9. Parents who are unhappy with a council’s decision not to issue an EHC plan have a right of appeal to the Tribunal. It is the mechanism set up by Parliament for parents to challenge such decisions.
10. Mrs X has used her right of appeal to the Tribunal. This means we cannot investigate the complaint.
11. Mrs X also says the Council failed to provide interim funding for her child. We cannot investigate this matter because it is too closely linked to the Council’s decision not to issue an EHC plan, which Mrs X has appealed.

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Final decision

12. We will not investigate this complaint because Mrs X has used her right of appeal to the First-Tier Tribunal (Special Educational Needs and Disability).

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Investigator's decision on behalf of the Ombudsman