The Ombudsman's final decision
Summary: We will not investigate this complaint about the assessment of Mrs X’s child’s special educational needs. Mrs X used her right of appeal to the Special Educational Needs and Disability Tribunal, which has decided what the provision for the child should be. She has the right to request fresh assessment by the Council in line with the timescale set out in law.
The complaint
Mrs X said the Council failed to complete a review of her child’s Education Health and Care (EHC) Plan in December 2022 and failed to carry out a review within 12 months of the previous one. She wanted the Council to compensate her and to hold another review.
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 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, our previous decision 23 016 725, and a copy of SEND Tribunal order of 12 October 2023.
I considered the Ombudsman’s Assessment Code.
My assessment
The Council issued a final EHC Plan for Mrs X’s child in August 2022. Complaint 23 016 725 confirmed that she appealed to the SEND Tribunal. The SEND Tribunal decision was in October 2023. Regardless of the Council’s duties in respect of reviews, we cannot investigate what provision should be made for a child between the date when an appealed EHC Plan was issued and the date of the Tribunal ruling. The complaint concerns matters of provision closely connected with the matters before the SEND Tribunal.
Mrs X has the right to request a further review of her child’s SEN once the statutory period after the SEND Tribunal ruling elapses.
Final decision
We will not investigate Mrs X’s complaint because it is closely connected to the matter of SEN provision, in respect of which Mrs X has used her right of appeal to the SEND Tribunal.
Investigator's decision on behalf of the Ombudsman