The Ombudsman's final decision
Summary: We cannot investigate this complaint about the Council’s handling of an application for an Education, Health and Care Plan for Miss X’s child. This is because Miss X has used her right of appeal to challenge the Council’s decisions.
The complaint
Miss X complains the Council refused to carry out an Education, Health and Care (EHC) assessment for her child, refused to issue him an EHC Plan and then named an unsuitable placement in the EHC Plan it issued. Miss X appealed against the Council’s decisions and now has a suitable school placement and support in place for his needs, but she says the Council’s decisions meant the process took too long and left him without support or suitable educational and special educational needs provision for nearly two years.
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 law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. We may decide to investigate if we consider it would be unreasonable to expect the person to use this right but cannot investigate if they have already used it. (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 Tribunal in this decision statement.
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)
How I considered this complaint
I considered information provided by Miss X’s representative, Mr Y, and the Council.
I considered the Ombudsman’s Assessment Code.
Final decision
We cannot investigate this complaint. This is because Miss X is complaining about council decisions, and the impact of those decisions, which she has used her right of appeal to challenge with the Tribunal. The exclusion set out at Paragraphs 3 and 5 therefore apply.
While Mr X is also unhappy with the way the Council dealt with his complaint, it is not a good use of public resources to look at the Council’s complaints handling if we are not going to look at the substantive issue complained about. We will not therefore investigate this issue separately.
Investigator's decision on behalf of the Ombudsman