The Ombudsman's final decision
Summary: We will not investigate this complaint about the school named in an education, health and care plan and the loss of educational provision because it was reasonable for the complainant to have used his right of appeal to a tribunal.
The complaint
Mr Y, a solicitor, submitted a complaint on behalf of Mr X. Mr Y complains the Council named a school in Mr X’s son’s education, health and care (EHC) Plan that could not meet the child’s needs. He says the child received no education for one year.
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 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) 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).
How I considered this complaint
I considered information provided by Mr Y and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
We will not start an investigation into Mr Y’s complaint. The issue at the heart of Mr Y’s complaint is the school named in Mr X’s son’s EHC Plan.
Parents who are unhappy with their child’s EHC Plan have a right of appeal to the Tribunal. We expect parents to use that right unless it is unreasonable for them to do so. It is the mechanism set up by Parliament for parents to challenge the educational provision or the setting named in their child’s EHC Plan.
In this case it was reasonable for Mr X to challenge the school named by appealing to the Tribunal. This is because the Tribunal can decide if an EHC Plan should be amended and a different school named. That is not something we can do.
The fact that it would have been reasonable for Mr X to appeal means that the content of the EHC Plan, and matters which are connected to the content, do not fall to be investigated by the Ombudsman. This is because 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. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right. I cannot investigate the education provision in place for Mr X’s son following the Council’s decision to name the school as it is not separable from that right of appeal.
Mr Y has requested the Council make a contribution towards Mr X’s legal costs. The EHC Plan Process, the Council’s complaints process and bringing a complaint to the Ombudsman do not require legal representation. The processes are designed to be accessible to members of the public and free of charge. We cannot achieve the outcome Mr Y requests for his clients.
Because it was reasonable for Mr X to appeal and we cannot achieve the outcome Mr Y requested, we will not consider his complaint.
Final decision
We will not investigate Mr Y’s complaint because it was reasonable for his clients to appeal and we cannot achieve the outcome he has requested.
Investigator's decision on behalf of the Ombudsman