The Ombudsman's final decision
Summary: We cannot investigate Mrs X’s complaint about the named school in her child’s Education, Health and Care Plan, the Council’s decision-making, or the Council’s poor communication. Mrs X appealed to the SEND Tribunal, and the law says we cannot investigate.
The complaint
Mrs X complained the Council: named an unsuitable school in section I of her child, Y’s, Education, Health and Care (EHC) Plan; delayed in its decision-making regarding Y’s school placement; and failed to communicate with her effectively about its decision-making.
Mrs X said the matter caused her frustration and distress. She said it impacted on Y’s educational attainment.
Mrs X wants the Council to provide a financial remedy, including reimbursing her legal fees and professional reports for the SEND Tribunal.
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 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) In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal…such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Named school in section I & desired outcome We cannot investigate Mrs X’s complaint about the content of Y’s EHC Plan, including the named school in section I. This is because Mrs X appealed the content of the EHC Plan to the SEND Tribunal. The law says the Ombudsman cannot investigate matters which have been considered by the Tribunal. Consequently, we cannot investigate this complaint.
Mrs X also asked the Ombudsman to consider reimbursing the costs she incurred as part of the appeal process. The Ombudsman cannot achieve this outcome. The SEND Tribunal has wide ranging powers to award costs as part of its own processes. Because the Tribunal has this power, the Ombudsman has no discretion to consider the matter now, and we cannot investigate this complaint.
Mrs X complained about delays in the Tribunal process and issues relating to the Council conceding before the Tribunal hearing. These are not matters the Ombudsman can consider. This is because it is for the Tribunal to manage its own process. The law says the Ombudsman cannot consider the conduct of the Council during the Tribunal process. Therefore, we cannot investigate this matter.
Poor communication Mrs X’s complaints about the Council’s communication relate broadly to its decision-making regarding Y’s school placement and the outcome of a mediation agreement. However, Mrs X appealed the content of the EHC Plan to the SEND Tribunal.
Because Mrs X appealed to the SEND Tribunal, any injustice stemming from the poor communication about the school placement or mediation outcome is too closely linked to the matter appealed to the SEND Tribunal. It is not sufficiently separable for the Ombudsman to investigate in isolation. Consequently, we cannot investigate this complaint. It was for the SEND Tribunal to address the matter of the named school in section I.
Final decision
We cannot investigate Mrs X’s complaint because she appealed to the SEND Tribunal, and the law says we cannot investigate.
Investigator's decision on behalf of the Ombudsman