Summary: We cannot investigate this complaint about the Council changing the content of the Education, Health, and Care Plan for Miss X’s child. This is because the law says we cannot investigate when someone has used their right to appeal to a Tribunal.

The complaint

1. Miss X complains the Council altered the content of her child’s Education, Health and Care (EHC) Plan. She says the Council deleted Section A from the working document during the Tribunal process. She says the Council reduced the provision in Section F between the 2024 Plan and the 2025 Plan.
2. Miss X says the removal of the information has forced her to reconstruct sections A and F during Tribunal proceedings. She says this has caused her significant stress. Miss X wants us to review the Council’s handling of the EHC plan. She also wants the Council to restore all the removed section F provision, ensure section A is correctly included and comply with its statutory procedures.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
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.
6. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been 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). 
7. 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)  

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How I considered this complaint

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

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My assessment

10. We cannot investigate the Council’s removal of Section A from the working document during the appeal. This is a complaint about the Council’s conduct during the appeal. The restriction in paragraph seven therefore applies.
11. We cannot investigate the Council’s decision to reduce the provision in Section F in the 2025 Plan. Miss X had a right of appeal to the Tribunal about the content of Section F. The restrictions in paragraphs four and six therefore apply. Miss X says her complaint is about how the Council removed the provisions, without following the correct process. However, this is not separable from the resulting content of the Plan, which was subject to appeal.

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Final decision

12. We will not investigate Miss X’s complaint because the law says we cannot investigate when someone has used their right to appeal to a tribunal about the same matter.

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Investigator's decision on behalf of the Ombudsman