Summary
Mrs X complained the Council failed to provide her son with the speech and language therapy in his Education, Health and Care Plan since October 2024. We have ended our investigation into Mrs X’s complaint because she used her right to appeal to the Tribunal. Her complaint therefore falls outside our jurisdiction.
The complaint
Mrs X complained the Council failed to provide her son (Y) with the speech and language therapy (SALT) in his Education, Health and Care (EHC) Plan since October 2024. She says this has had a detrimental impact on Y’s progression.
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 or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), 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 Tribunal in this decision statement.
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 evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Y has special educational needs and an EHC Plan. An EHC Plan sets out a child/young person’s needs and what arrangements should be made to meet them.
The Council issued Y with an EHC Plan in July 2024. It did not name a school in section I of the Plan, but it said the type of setting should be mainstream (with a specialist unit) or specialist. Section F of the Plan says Y should receive SALT input in school.
Mrs X appealed to the Tribunal about the Council’s failure to name a school in Y’s EHC Plan.
Analysis Y’s EHC Plan says he should receive SALT input in school. The Council did not name a school to provide this provision in Y’s EHC Plan, and Mrs X appealed this to the Tribunal. Mrs X’s complaint about the Council’s failure to provide Y with SALT is connected to, and not separable from, her appeal to the Tribunal. Therefore, Mrs X’s complaint is outside the Ombudsman’s jurisdiction, and we have no discretion to investigate it. The period we cannot investigate starts from the date on which the Council issues the final EHC Plan and ends when the appeal process concludes.
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).
Decision I have ended my investigation because Mrs X used her right to appeal to the Tribunal. Her complaint therefore falls outside our jurisdiction.
Investigator's decision on behalf of the Ombudsman