Summary: We cannot investigate X’s complaint about the Council’s refusal to carry out an Education Health and Care needs assessment, or the conduct of the Council during a tribunal appeal. The law prevents us from investigating complaints when someone has used their right of appeal to a tribunal.

The complaint

1. X complains about how the Council dealt with their child’s request for an Education Health and Care (EHC) needs assessment and about the conduct of the Council during their appeal to a tribunal. X also complains about how the Council dealt with their complaint about these matters.

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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. 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…”.
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.

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How I considered this complaint

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

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My assessment

8. We cannot investigate X’s complaint. When someone has appealed to a tribunal, the law prevents us from considering the matter appealed or related issues. The courts have decided this includes the Council’s conduct during the appeal process and information it provided to the SEND Tribunal.
9. The way the Council conducted itself during the appeal process is instead a matter for the SEND Tribunal. It makes case management directions, has powers to deal with non-compliance, and can make costs orders.
10. For these reasons, we cannot investigate X’s complaint because we cannot trespass into the role of the SEND Tribunal.
11. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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Final decision

12. We will not investigate X’s complaint because the law prevents us from investigating complaints when someone has used their right of appeal to a tribunal.

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Investigator's decision on behalf of the Ombudsman