The Ombudsman's final decision
Summary: We cannot investigate Mrs X’s complaint that the Council failed to consult with her preferred school of choice, or her complaint about the content of her child’s Education, Health and Care Plan. This is because Mrs X used her right of appeal to the SEND Tribunal about the content of the Plan and the law says we cannot investigate.
The complaint
Mrs X complained the Council failed to consult her preferred school placement for her child, Y, and about the content of Y’s Education, Health and Care (EHC) Plan.
Mrs X says the matter caused her frustration.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 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 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).
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
We cannot investigate Mrs X’s complaint that the Council failed to consult with her preferred school of choice during the process of creating her child’s Education, Health and Care (EHC) Plan in December 2023, or about the content of Y’s final EHC Plan including the named school and provision outlined in section F.
Mrs X has appealed the content of Y’s EHC Plan to the SEND Tribunal, including the named school and provision within Y’s EHC Plan. The law says we cannot investigate a complaint where someone has appealed to the Tribunal about the same matter. Caselaw has established we cannot investigate any matters connected to a matter under appeal. This includes the school consultation process prior to the final EHC Plan being made.
Final decision
We cannot investigate Mrs X’s complaint because she has used her right of appeal to a Tribunal about the same matter, and the law says we cannot investigate.
Investigator's decision on behalf of the Ombudsman