Summary: We cannot investigate this complaint that the Council was at fault in the course of amending the complainant’s child’s Education Health and Care plan and in responding to her subsequent complaint. This is because the complainant has used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability).

The complaint

1. The complainant, Mrs X, complains that the Council was at fault in the course of amending her child’s Education Health and Care (EHC) plan and in responding to her subsequent complaint.

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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. 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)
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 Tribunal in this decision statement.
5. 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)
6. 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).

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How I considered this complaint

7. I considered information provided by the complainant.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. Mrs X’s child has special educational needs and an EHC plan. The EHC plan was amended following an emergency annual review. Mrs X says the process was flawed and, as a result, the amended EHC plan issued in March 2024 did not meet her child’s needs.
10. Mrs X says the Council failed to respond to her representations while the EHC plan was in draft form and erroneously told her that it could not consider privately obtained reports as part of the assessment. She says the Council subsequently failed to respond to her request for mediation regarding the content of the amended final EHC plan, compelling her to appeal to the Tribunal. She further complains that the Council’s response to her subsequent complaint was flawed.
11. The Ombudsman cannot investigate Mrs X’s complaint. The result of the fault she identifies in the assessment process is that the Council issued an EHC plan she regards as flawed. The fact that Mrs X used her right to appeal to the Tribunal places her complaint about the flaws in the assessment and the content of the subsequent EHC plan outside the Ombudsman’s jurisdiction by law. This restriction also applies to the Council’s actions once the appeal right became available to Mrs x, meaning we cannot consider its failure to respond to her request for mediation. There is no discretion available to us.
12. We will not consider how the Council responded to Mrs X’s complaint. It is not a good use of our resources to consider complaint procedures where the substantive matter does not fall to be investigated. That is the case here and we will not intervene.

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Final decision

13. We cannot investigate Mrs X’s complaint because she has used her right to appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman