Summary: We cannot investigate this complaint about the actions of the Council while Mr X’s son was not in school as they are not separable from the content of the child’s EHC Plan, which was a matter for a Special Educational Needs and Disability Tribunal. We cannot consider complaints about the actions of schools.

The complaint

1. Mr X said his son’s school failed to act properly after an incident in which he was touched inappropriately by another child. He said the Council failed to offer alternative educational provision. He also said the Council refused to investigate the school’s actions, refused mediation before a Tribunal, and made an educational psychologist change a report to suit the Tribunal. He said the Council said it wasn’t their job to look out for children in school, and finally refused to call him back or respond to him.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
4. The Courts have said that we cannot investigate a complaint about any action by a council, concerning a matter which is itself out of our jurisdiction. (R (on the application of M) v Commissioner for Local Administration [2006] EHWCC 2847 (Admin))
5. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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.
7. The Courts have said we cannot investigate a decision where it has been or could reasonably be appealed to a tribunal, they have also said we cannot consider the consequences of that decision. (Local Government Act 1974, section 26(6)(a), R v the Commissioner for Local Administration ex parte PH, 1999);  R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407 (‘the Hillingdon judgment’)

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How I considered this complaint

8. I considered information provided by the complainant and the Council.
9. I considered the Ombudsman’s Assessment Code.

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My assessment

10. None of the matters complained of are separable from ones where we have no discretion to investigate.

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Final decision

11. We cannot investigate Mr X’s complaint because:

• we cannot investigate any actions of the school;
• we cannot investigate the Council’s actions concerning the school’s investigation of the incident or what the school reported as the school’s substantive actions are outside our jurisdiction;
• we cannot investigate what educational provision the Council could or should have made after it responded to Mr X’s request for alternative educational provision. This is because it had named the school the child had formerly attended on his Education Health and Care Plan, and provision from this time was subject to an appeal to the SEND Tribunal; and
• the remainder of the matters alleged concerning the Council’s conduct are not separable from the content of the EHC Plan, about which Mr X has exercised his right to appeal to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman