Summary: We will not investigate this complaint about the Council’s failure to offer alternative educational provision for Mrs X’s child. A legal ruling prevents us investigating most of the period covered by this complaint, and given the Council has already offered a payment of £3250, investigation by us of the remaining period would not lead to a better outcome.

The complaint

1. Mrs X said the Council failed to offer any alternative educational provision for her child for a year from September 2022 to July 2023 while he was out of school and waiting for an appeal to the Special Educational Needs and Disability Tribunal to be heard.

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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. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
4. 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.
5. 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
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

7. I considered information provided by the complainant.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. When Mrs X complained, the Council accepted it had failed to offer alternative educational provision for her child between September 2022 and July 2023. It also accepted its communications with Mrs X had been poor. It apologised and offered her £3250.
10. The legal ruling referred to above means we have no legal power to make any finding about most of this period. We could only investigate the time from September to October 2022, which is before the Council issued the Education Health and Care (EHC) Plan Mrs X appealed against. Given the Council’s acceptance of fault, it stands to reason that it has accepted fault for that short period. If we investigated, we would be likely to recommend a payment, though the short timespan means it would not be much more than £1000. For that reason, investigation by us would not add anything to the Council’s investigation, either in finding fault, or proposing a greater remedy.

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Final decision

11. We will not investigate Mrs X’s complaint because the effect of a legal ruling means doing so would not be likely to lead to a better outcome.

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Investigator's decision on behalf of the Ombudsman