Summary: We cannot investigate Mrs X’s complaint about a report the Council presented to the First-tier Tribunal (Special Educational Needs and Disability), and the Council’s handling of her complaint about the matter. Mrs X has used her right to appeal to the Tribunal.

The complaint

1. Mrs X complained about the content of an Educational Psychologist’s report, the Council’s handling of a SEND7 form she put in and about its handling of her resulting complaint.
2. Mrs X said this caused distress.
3. Mrs X wants the Council to properly consider her complaint about these matters.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. 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. 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…”.
8. The courts have said we can decide not to investigate a complaint about any action by an organisation concerning a matter which the law says we cannot investigate. (R (on the application of M) v Commissioner for Local Administration [2006] EHWCC 2847 (Admin))

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How I considered this complaint

9. I considered information provided by Mrs X.
10. I considered the Ombudsman’s Assessment Code.

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My assessment

11. The Council carried out an Education, Health and Care (EHC) Needs Assessment for Mrs X’s child. It decided not to issue an EHC Plan.
12. Mrs X appealed to the Tribunal about the Council’s decision.
13. 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)
14. The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699 (‘Tribunal Procedure Rules’) give the Tribunal the power to regulate its own procedure. The Tribunal Procedure Rules give the Tribunal extensive case management powers. 
15. We cannot investigate the council’s conduct during an appeal. This includes anything a complainant could have raised with the Tribunal at any stage of the appeal, or which the Tribunal has considered on its own initiative, or which could have been a part of the Tribunal’s deliberations in resolving the appeal (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
16. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded.
17. We cannot investigate this complaint. The matters which Mrs X complains about are inseparable from matters the Tribunal could consider.
18. We will also not investigate Mrs X’s complaint about the Council’s complaint handling. The courts have said we can decide not to investigate complaints about complaints procedures when we cannot investigate the substantive matter.

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Final decision

19. We will not investigate Mrs X’s complaint because she has used her right of appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman