Summary: We cannot investigate this complaint about the Council’s decision not to name specialist educational provision in an Education Health and Care plan. This is because the complainant has used her right to appeal, and this places the matter outside the Ombudsman’s jurisdiction.

The complaint

1. The complainant, Mrs X, complains that the Council has unreasonably refused to agree to name specialist educational provision in her son’s Education Health and Care (EHC) plan.

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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. 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 Tribunal in this decision statement.
5. 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…”.

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How I considered this complaint

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

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My assessment

8. Mrs X’s son has special educational needs and an EHC plan. Mrs X says the Council has unreasonably refused to name specialist provision in Section I of the plan, despite the evidence demonstrating that this would meet her son’s needs.
9. Mrs X says the Council issued the EHC plan in September 2024 and she has used her right to appeal to the Tribunal. She says the Council has failed to make responses to the Tribunal by the required date.
10. The Ombudsman cannot investigate Mrs X’s complaint. This is because she has used her right to appeal to the Tribunal about the content of the EHC plan. By law, this places the matter outside our jurisdiction. This restriction also applies to the Council’s conduct in relation to the Tribunal. We cannot therefore consider whether the Council was at fault in declining to name specialist provision, or in failing to provide responses to the Tribunal. There is no discretion available to us.

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Final decision

11. 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