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

The complaint

1. Mrs X complains the Council did not follow the SEND Code of Practice when it refused to issue her child with an Education, Health and Care (EHC) plan. She also says the Council failed to obtain all the relevant professional advice before deciding not to issue an EHC plan.

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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. 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 decided not to issue her child with 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 used her right of appeal to the Tribunal. This means we cannot investigate her complaint.
11. Mrs X is also unhappy with the way the Council dealt with her complaint. 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 this issue separately.

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Final decision

12. We will not investigate Mrs X’s complaint because Mrs X used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability).

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Investigator's decision on behalf of the Ombudsman