The Ombudsman's final decision
Summary: We cannot investigate Ms X’s complaint about failures in the Council’s Education, Health and Care Plan review process. Ms X has appealed to the SEND Tribunal about the content of the amended plan. Her complaint is connected to the matters being appealed so we cannot investigate.
The complaint
Ms X complains about failures during the Council’s Education Health and Care (EHC) Plan review process for her child, Y. She says the Council failed to hold the required EHC Plan review meeting during her child’s education phase transfer year and when it issued a draft amended plan, did not give her the required 15 working days to request amendments before it issued the final amended plan.
She says the Council’s actions have caused distress and her child has been left without the required support.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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) 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…”.
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).
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.
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
SEND regulations and statutory guidance set out the process councils must follow to review and amend an Education, Health and Care Plan (EHC Plan). In the year when a child is moving between phases of education, councils must hold a review meeting to consider whether amendments to the plan are needed and to name an educational placement for the following September. Councils must hold the review and issue the final amended plan by 15 February of the phase transfer year.
The Council issued an EHC Plan for Y in July 2023. In September 2023, Y started in Year 6, a phase transfer year. In February 2024, the Council issued a final amended EHC Plan for Y.
Ms X complained to the Council. She said the Council had not held the required review meeting or given her 15 working days to comment on a draft amended version of the plan, before it had issued the final amended plan.
Ms X was dissatisfied with the content of the plan and used her right of appeal to the SEND Tribunal.
We cannot investigate Ms X’s complaint. Her complaint relates to council action or inaction during the review process and the consequence of that is that she is dissatisfied with the final amended EHC Plan. Ms X has appealed to the SEND Tribunal about the plan and, as her complaint is connected to matters under appeal, we cannot investigate. This is the case even though Ms X may feel she is left without a remedy for the injustice caused.
Final decision
We cannot investigate Ms X’s complaint because she has used her right of appeal to the SEND Tribunal and her complaint is connected to matters under appeal.
Investigator's decision on behalf of the Ombudsman