The Ombudsman's final decision
Summary: We cannot investigate Mrs X’s complaint the Council named a school which could not meet her child’s needs in their Education, Health and Care Plan. This is because we cannot investigate any matter connected to a decision that has been appealed to a tribunal.
The complaint
Mrs X complained the Council named an unsuitable school in her child, Y’s, Education, Health and Care (EHC) Plan. She said Y has missed out on a suitable education and the Council’s actions have caused emotional and financial strain for the family. She now wants the Council to review its processes for making EHC Plan decisions and name a school that can meet Y’s needs.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
The courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916) 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) 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.
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
In November 2024, the Council issued an EHC Plan for Y.
Mrs X complained the school named in Y’s EHC Plan was not suitable. She said this school previously told the Council it felt it could not meet Y’s needs and therefore she said the Council should not have named it.
Mrs X appealed to the Tribunal about the school named in the EHC Plan.
We cannot investigate Mrs X’s complaint the Council named a school that could not meet Y’s needs. As explained in paragraph three, we cannot investigate complaints when someone has appealed about the same matters to a tribunal.
Nor can we investigate Mrs X’s claim that the Councils actions resulted in Y missing out on a suitable education. The courts have confirmed that we cannot look at the consequences of a council’s decision where the decision itself has been, or could be, the subject of an appeal. Mrs X says Y missed out on a suitable education because of the Council’s decision to name a school which could not meet their needs. Therefore, this matter is not separable from the issues which have been appealed.
Final decision
We cannot investigate Mrs X’s complaint because Mrs X has appealed the issues complained about to the Tribunal which means the Ombudsman has no jurisdiction to consider them.
Investigator's decision on behalf of the Ombudsman