The Ombudsman's final decision
Summary: We cannot investigate Mrs X’s complaint that the Council failed to arrange suitable education and placement for her child. This is because the issues are too closely linked to the content of the EHC plan, which Mrs X has used her right of appeal to challenge at the Tribunal.
The complaint
Mrs X complains the Council did not arrange suitable education and a suitable placement for her child (Y), who has an Education, Health and Care (EHC) Plan, from September 2024. Mrs X says this caused Y to miss education and caused her family emotional distress and financial strain. She wants the Council to provide compensation for the cost of additional childcare.
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 Tribunal in this decision statement.
We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
I considered information provided by Mrs X and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
The Council issued Y with an EHC plan in September 2024.
Mrs X says the Council failed to provide her child with the type of specialist setting specified in his EHC plan. She says her child was on a reduced timetable at a mainstream primary school, could not engage with learning activities and the education provided was unsuitable for him. She also says the Council failed to direct any of the settings which said they could not meet Y’s needs during the consultation process. She appealed Sections B, F and I of the EHC plan to the Tribunal.
Mrs X complained to the Council. The Council refused the complaint and said it did not accept there was a failure to secure Y with a full-time education. It said a school placement was available and that it had expected Y to attend. It offered a goodwill gesture of £1100 to recognise the phased transition period. The Council has since found another setting for Y.
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).
This means that if a child or young person is attending school on a reduced timetable because of a disagreement about the special educational provision or placement in an EHC Plan, we cannot investigate the provision of education.
In this case, Mrs X disagreed with the school named in her child’s Education, Health and Care (EHC) Plan and appealed the placement (Section I) to the Tribunal. She also says the Council failed to provide her child with an education. These matters are closely linked. Therefore, the law does not allow us to investigate Mrs X’s complaint.
Mrs X also wants the Council to disclose documents relating to its attempts to find Y a school place. We will not investigate this matter. This is because it is reasonable to expect her to take the matter to the Information Commissioner’s Office (ICO). The ICO is the appropriate body to review complaints about data matters, has the expertise to decide such matters, and can make necessary recommendations
Final decision
We will not investigate Mrs X’s complaint because the issues are too closely linked to the content of the EHC plan, which Mrs X has used her right of appeal to challenge at the Tribunal.
Investigator's decision on behalf of the Ombudsman