The Ombudsman's final decision
Summary: We will not investigate this complaint about the way the Council dealt with Mrs X’s contacts about her child’s special educational needs. The matters she complains of are not separable from decisions made about the child’s special educational needs in respect of which she has exercised her right to appeal to a Tribunal. It is not a good use of resources to investigate the Council’s complaint handling when the substantive matter is not something we can investigate.
The complaint
Mrs X complained of the manner in which the Council responded to her when it was drawing up an Education Health and Care (EHC) Plan for her child. She said it failed to make an adjustment for her disability or to allow her to write anything or provide supporting evidence to a panel that decided on her child’s needs. She also complained about how the Council dealt with her complaint about these matters.,
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) 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…”.
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.
It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Mrs X appealed to the SEND Tribunal against the EHC Plan issued by the Council. Her complaint to us focuses on the way she says the Council treated her in reaching its decision and in dealing with her complaint about that.
The complaint correspondence I have seen does not show a matter relating to any requested adjustment for a disability, or to the complaint to the Council, that is separable from Mrs X’s wish to make representations about the Council’s decisions regarding her child’s SEN. In the event of a disagreement, the correct route was to appeal to the SEND Tribunal, which Mrs X has done.
Final decision
We will not investigate Mrs X’s complaint because the matters she complains of are not separable from decisions about her child’s SEN. She has exercised her right to appeal against these decisions to the SEND Tribunal We will not investigate Mrs X’s complaint about how the Council dealt with her complaint as we are unable to deal with the substantive issue.
Investigator's decision on behalf of the Ombudsman