The Ombudsman's final decision
Summary: We cannot investigate Ms X’s complaint about the Council’s actions during the Education, Health and Care Plan needs assessment and appeals process. This is because Ms X has used her right of appeal to a tribunal.
The complaint
Ms X complains about the Council’s actions during her child’s Education, Health and Care (EHC) needs assessment process, the decision not to issue her child with an EHC Plan in 2022 and its conduct during the tribunal appeals process.
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 courts have established that if someone has appealed (or could have) appealed to a tribunal, 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) 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) 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.
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
In August 2022, the Council decided not to issue Ms X’s child, Y, with an Education, Health and Care (EHC) Plan. Ms X used her right of appeal about this decision to the SEND Tribunal.
In October 2023 and prior to the Tribunal hearing, the Council reviewed its decision and said it would issue Y with an EHC Plan. Ms X complained about the Council’s actions which led to the August 2022 decision, and its conduct during the appeals process.
We cannot investigate this complaint. Our legislation and relevant caselaw mean that we cannot investigate any matter which was or could have been considered as part of an appeal. Any dissatisfaction with the needs assessment process which lead to the decision being appealed is connected to and could have formed part of the appeal, and so we cannot investigate this. We also cannot investigate the Council’s conduct during the appeal.
Final decision
We will not investigate Ms X’s complaint because she has used her right of appeal to the SEND Tribunal.
Investigator's decision on behalf of the Ombudsman