Summary: We will not investigate this complaint about alternative educational provision. Mrs X has appealed to the Special Educational Needs and Disability Tribunal against the Council’s refusal to assess her daughter for an Education Health and Care Plan and the matter complained of is not separable from that. A court ruling means we are unable to say what education should be provided in such circumstances, even where a child is not in education. There is not enough evidence of fault to justify investigation of the short period before the Council decision that gave rise to the right of appeal.

The complaint

1. Mrs X said the Council has failed to make alternative educational provision for her daughter since she has been unable to attend school.

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The Ombudsman’s role and powers

2. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
3. 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.
4. The courts have held that where someone has appealed to the SEND Tribunal, we have no authority to consider what educational provision should be made for the child concerned. (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 Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6))

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How I considered this complaint

5. I considered information provided by the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Ms X has appealed to the SEND Tribunal against the Council’s refusal to assess her daughter for an EHC Plan.
8. We may investigate a complaint about a Council’s duty to offer alternative educational provision if the matter is separable from an appeal to the SEND Tribunal. That would require the reason for absence to be unconnected to the reason for the appeal. For example, a child whose parent appeals against a refusal to assess might then be unable to attend the usual school because of an injury.
9. The correspondence between Mrs X and the Council shows that is not the case here. Mrs X’s contention is that her daughter’s anxiety prevents her attending her usual school. That issue lies behind the dispute over assessment, which Mrs X has taken to the SEND Tribunal.
10. The short period in early 2021 before the right of appeal rose is one where schools were closed to most pupils during a national lockdown due to coronavirus. An email from early January 2021 supplied by Mrs X shows her daughter’s school was nonetheless willing to offer her a place at the school in a bubble of 15 children when Mrs X told the school her daughter was unable to cope with the virtual learning provided by the school to other children.

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Final decision

11. We will not investigate Mrs X’s complaint. Most of the matters complained of are not separable from those that are subject to an appeal to the SEND Tribunal, so we cannot investigate them. There is not enough evidence of fault in the remainder to justify investigation.

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Investigator's decision on behalf of the Ombudsman