The Ombudsman's final decision
Summary: We will not investigate Miss X’s complaint about the Education Health and Care Plan process for her son. This is because Miss X appealed to a tribunal and so the case is outside our jurisdiction. We will not look at complaint handling in isolation.
The complaint
The complainant, Miss X, complained about the content of her son’s Education Health and Care Plan (EHC Plan). Miss X is unhappy the Council removed provision, with the school named, and with the Council’s general conduct and decision-making. Miss X says the Council’s actions meant she had to appeal to the First-tier Tribunal (Special Educational Needs and Disability). Miss X is unhappy with how the Council dealt with her complaint and the time it took to respond.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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) The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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)
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
We will not start an investigation into Miss X’s complaint. This is because the issues at the heart of her complaint were appealable to the SEND Tribunal. Miss X used her right of appeal. By law, this places the content of the EHC Plan outside our jurisdiction. Any alleged failings in the decision-making process cannot be separated from the matter appealed. We are barred from looking at the Council’s conduct during the appeals process. It is not a good use of our resources to look at complaint handling as a standalone issue if we are not going to look at the matter which led to the original complaint.
Final decision
We will not investigate Miss X’s complaint. This is because she has appealed to a tribunal, and we will not look at complaint handling in isolation.
Investigator's decision on behalf of the Ombudsman