The Ombudsman's final decision
Summary: We cannot investigate Mrs X’s complaint about the Council’s refusal to carry out an Education, Health and Care Needs Assessment for her child. This is because Mrs X has appealed to a tribunal.
The complaint
Mrs X complains the Council refused to carry out an Education, Health and Care needs assessment for her child, Y. She says it did not consider her views or that of Y’s school in its decision making.
She also complains the Council failed to arrange mediation within required timescales.
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) 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.
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.”
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
I cannot investigate Mrs X’s complaint about the Council’s decision because she has appealed to the SEND Tribunal thereby placing the matter out of our jurisdiction.
And her complaint about the Council’s decision making and any delays in mediation is not separable from the substantive matter of her appeal, so I cannot investigate this either. The SEND Tribunal is the appropriate body to review the Council’s decision, decision-making and any ancillary matters not separable from its refusal.
Final decision
We cannot investigate Mrs X’s complaint because she has appealed to the SEND Tribunal thereby placing the matter out of our jurisdiction.
Investigator's decision on behalf of the Ombudsman