Summary: We cannot investigate this complaint about the Council’s handling of Miss X’s application for an Education, Health and Care Plan for her daughter and its refusal to provide alternative educational provision while she was unable to attend school. This is because Miss X has used her right of appeal and issued proceedings against the Council at court.

The complaint

1. Miss X complains the Council took too long to issue her daughter’s Education, Health and Care (EHC) Plan. She also complains the Council wrongly named a mainstream placement in her daughter’s EHC Plan and failed to provide her with alternative educational provision under Section 19 of the Education Act 1996 for nearly a year.

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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 courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
4. 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. We may decide to investigate if we consider it would be unreasonable to expect the person to use this right but cannot investigate if they have already used it. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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.
6. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)

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How I considered this complaint

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

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My assessment

9. It is clear Miss X disagrees with the Council’s decisions regarding the content of her daughter’s EHC Plan, in particular the decision to name a mainstream school rather than a special school, but we cannot investigate this issue further because she has used her right of appeal to the Tribunal. The Tribunal will consider whether the Council’s decision was wrong and, if it decides it was, it can name a specialist placement.
10. We also cannot investigate Miss X’s complaint about the Council’s refusal to put alternative educational provision in place for her daughter while she was unable to attend school. This is because Miss X started proceedings against the Council to challenge its decision.
11. While I appreciate Miss X’s proceedings did not provide a remedy for the lack of alternative provision prior to her application to the court, this does not mean we can. In fact, the courts have acknowledged there may be cases where, following the use of an alternative remedy such as a Tribunal appeal or court application, a complainant will be left without a remedy. But they have confirmed this does not mean we can investigate. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 
12. Miss X’s complaint about the Council’s delay in issuing her daughter’s EHC Plan does fall within our jurisdiction to investigate but the evidence I have seen shows she has not raised this issue with the Council as set out at Paragraph 6. I do not consider it would be unreasonable for her to do so and I will not therefore exercise my discretion to investigate the issue further at this stage. If Miss X wishes to pursue it further she should complain to the Council first. She may then refer it back to us to consider further, once she has completed the Council’s complaints process.
13. Miss X is also unhappy with the way the Council dealt with her complaint and her correspondence about the matter. But it is not a good use of public resources to look at the Council’s complaints handling if we are not going to look at the substantive issue complained about. We will not therefore investigate these issues separately.
14. In any event, part of Miss X’s concerns about the Council’s communication relates to the way the Council reached its decision on the contents of her daughter’s EHC Plan and its refusal to offer alternative provision. As set out above, Miss X has already sought a remedy for these issues and we cannot therefore look separately at the way the Council reached its decisions.

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Final decision

15. We cannot investigate this complaint. This is because Miss X has appealed against the contents of her daughter’s EHC Plan and taken action against the Council at court for its refusal to offer her alternative provision under Section 19 of the Education Act 1996.

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Investigator's decision on behalf of the Ombudsman