Summary: We cannot investigate this complaint that the Council was at fault during the process of the complainant’s appeal to the First-tier Tribunal (Special Educational Needs and Disability). By law, we cannot consider a council’s actions during an appeal.

The complaint

1. The complainant, Miss X, complains that the Council was at fault throughout the process of her appeal to the First-tier Tribunal (Special Educational Needs and Disability) against the content of her son’s Education Health and Care (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 Tribunal in this decision statement.
5. The courts have established that we cannot investigate the council’s conduct during an appeal. This includes anything a complainant could have raised with the Tribunal at any stage of the appeal, or which the Tribunal has considered on its own initiative, or which could have been a part of the Tribunal’s deliberations in resolving the appeal (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207) 2023] EWCA Civ 207)

Back to top

How I considered this complaint

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

Back to top

My assessment

8. Miss X’s son has special educational needs and an EHC plan. Miss X disagreed with the school the Council named in Section I of the EHC plan and used her right to appeal to the Tribunal.
9. Miss X complains that the Council was at fault in its response to the appeal. She says it lost documents and was late providing evidence to the Tribunal. She says fault on the Council’s part has caused her and her son unnecessary distress and financial loss.
10. We cannot investigate this complaint. Miss X has used her right to appeal to the Tribunal. By law, the Tribunal process, including the Council’s actions, falls outside our jurisdiction. This restriction applies from the point at which appeal rights became available to Mrs X. There is no discretion available to us.

Back to top

Final decision

11. We cannot investigate Miss X’s complaint because it concerns the Council’s actions in the course of an appeal to the First-tier Tribunal (Special Educational Needs and Disability).

Back to top

Investigator's decision on behalf of the Ombudsman