Summary: We will not investigate Mrs X’s complaint about her child’s education. We cannot investigate the same issues involved in a Tribunal.

The complaint

1. The complainant, whom I shall call Mrs X, says the Council has failed to provide a suitable education to her child, Y.

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The Ombudsman’s role and powers

2. 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.
3. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)
4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)

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How I considered this complaint

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

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My assessment

7. Y has an Education Health and Care Plan (EHC Plan). Mrs X says that in June 2023 Y had missed more than 15 days schooling. She says she asked for Y’s education to be changed to a different format. She says the Council has failed to do so.
8. The Council brought forward the annual review of Y’s EHC Plan. It told Mrs X in August that it would not change the EHC Plan as it felt the provision was still suitable for Y. Mrs X has since appealed this decision to the Tribunal. She believes Y’s EHC Plan needs amending and does not meet Y’s needs.

Analysis

9. We cannot investigate whether the EHC Plan meets Y’s needs as we cannot investigate anything the Tribunal is covering or can cover. We cannot therefore investigate if the education the Council is currently offering Y is suitable.
10. Mrs X has referred to the Council’s section 19 duty. This applies to children without an EHC Plan or those who are out of school for reasons unconnected to why they have an EHC Plan. As an example, caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. Whether the provision set out in Y’s current EHC Plan is suitable or reasonably practicable for Y to access is currently part of the Tribunal’s consideration.
11. The Council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). It is unlikely that our investigation would find that this duty has not been met.

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Final decision

12. We will not investigate Mrs X’s complaint because we cannot investigate the same issues the Tribunal is considering and can consider.

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Investigator's decision on behalf of the Ombudsman