The Ombudsman's final decision
Summary: We will not investigate Mrs X’s complaint about the Council’s actions during her child’s Education, Health and Care (EHC) Plan annual review and the content of the final amended EHC Plan. This is because Mrs X has a right of appeal to a tribunal about the content of the amended EHC Plan and it is reasonable for her to use it. A complaint about the Council’s actions during the annual review process is connected to and could form part of an appeal, so we cannot investigate this.
The complaint
Mrs X complained about the Council’s consultation with secondary schools during the Education, Health and Care (EHC) review process regarding her child, Y. Mrs X says the Council named a school in section I that was unsuitable for Y’s needs.
Mrs X says the matter has caused her uncertainty about Y’s education.
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 law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (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) Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past 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).
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.
I considered the Ombudsman’s Assessment Code.
My assessment
We will not investigate this complaint. The consequence of Mrs X’s alleged fault is that the EHC Plan does not reflect her child’s needs. Mrs X has a right of appeal to the SEND Tribunal if she disagrees with the content of the amended EHC Plan. The Ombudsman cannot direct changes to the content of the EHC Plan. Only the Council or Tribunal can do this. Therefore, it is reasonable to expect Mrs X to use her right of appeal if she wishes to change the named school in the EHC Plan.
The Council’s actions during the annual review process including which schools it consulted with is connected to matters which could form part of an appeal, and so we cannot investigate those issues.
Final decision
We will not investigate Mrs X’s complaint because she has a right of appeal to a tribunal about the content of the final EHC Plan and it is reasonable for her to use it. We cannot investigate the Council’s actions during the annual review process as this is connected to, and could form part of, an appeal.
Investigator's decision on behalf of the Ombudsman