Summary: We cannot investigate this complaint that the Council has failed to identify an appropriate mainstream educational option for the complainant. This is because she has appealed to the First-tier Tribunal (Special Educational Needs and Disability) against the Council’s decision not to maintain her Education Health and Care plan, and the subject of the complaint is not separable from the matters the Tribunal may consider.

The complaint

1. The complainant, Miss X, complains that the Council has failed to identify a form of mainstream education capable of meeting her needs.

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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…”.
6. 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

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

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My assessment

9. The correspondence Miss X has provided shows that the Council has decided not to maintain her EHC plan on the grounds that her needs can be met without one. She has appealed to the Tribunal against this decision.
10. Miss X complains that, despite the Council’s assertion, it has failed to identify any specific provider or model capable of delivering education while meeting her needs. The Council has declined to address the complaint because of the appeal. Miss X says her complaint does not relate to the decision not to maintain the EHC plan, and does therefore fall to be investigated.
11. The Ombudsman cannot investigate Miss X’s complaint. The law provides that we cannot investigate a complaint about a matter which has been the subject of an appeal. The period we cannot investigate starts from the date the appealable decision was made and ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded.
12. The courts have decided that this restriction also applies to any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. Whether an EHC plan is required in order to deliver appropriate education is clearly a matter which is material to Miss X’s appeal, and may therefore form part of the Tribunal’s consideration. That being the case, the Ombudsman has no jurisdiction to consider it and cannot do so.

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Final decision

13. We cannot investigate Miss 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