Summary: We will not investigate Mr X’s complaint about the Education Health and Care Plan process for his son. This is because Mr X appealed to a tribunal and so the case is outside our jurisdiction.

The complaint

1. The complainant, Mr X, complained the Council failed to name a suitable school in his son’s Education Health and Care Plan (EHC Plan). This led to a period when Mr X’s son did not attend school. Mr X says the Council’s decision meant he had to appeal to First-tier Tribunal (Special Educational Needs and Disability) during which he incurred costs. Mr X is unhappy with how the Council decided the school named in the EHC Plan.

Back to top

The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. 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)
4. 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.
5. Some parents will incur significant legal and expert fees during the appeal process. We cannot investigate this as the tribunal has powers to consider and/or award costs as part of the appeal. (The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699, Rule 10) 

Back to top

How I considered this complaint

6. I considered information provided by the complainant and the Council.
7. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

8. We will not start an investigation into Mr X’s complaint. This is because Mr X appealed the content of his son’s EHC Plan to the SEND Tribunal. By law, this places the content of the EHC Plan outside our jurisdiction. Mr X’s son was out of school because he disagreed with the school named. This is the matter appealed to the Tribunal and so we cannot consider the lack of education. Any alleged failings in the decision-making process cannot be separated from the matter appealed. We also cannot investigate the issue of costs incurred during the appeal. This is because the Tribunal has powers to award costs.

Back to top

Final decision

9. We will not investigate Mr X’s complaint because he has used his right of appeal to a tribunal.

Back to top

Investigator's decision on behalf of the Ombudsman