Summary: We cannot investigate Mrs X's complaint the Council did not provide alternative provision to her son when they were not going to school. That is because the decision about alternative provision is not separable from her appeal about the content of an Education, Health, and Care plan. Therefore, the law says we cannot investigate.

The complaint

1. Mrs X said the Council should have provided alternative provision for her son (Y) when he was not in school. Mrs X also said she was unhappy with how the Council considered the information it included in his final Education, Health, and Care (EHC) Plan.
2. Mrs X said the Council’s actions caused disruption to her family and caused her significant stress.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. 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)
6. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 

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How I considered this complaint

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

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My assessment

9. In August 2023, the Council issued a final EHC Plan for Y, and it named a mainstream school. Mrs X complained because the Council refused to provide alternative provision, after it became apparent to her that Y could not go to that school in September.
10. Mrs X said this was because of an anxiety disorder and the school could not meet Y’s needs. Mrs X appealed to the SEND Tribunal about the Council’s decision to name the school. She also appealed section B, special educational needs (SEN) and section F, special educational provision.
11. We cannot investigate Mrs X’s complaint the Council should have provided alternative provision for Y, or how it decided what information to include in the final EHC Plan. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, or was connected to, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
12. This means if a child or young person is not attending school, and the reason for non-attendance is linked to a parent’s disagreement about the educational placement or SEN in the EHC Plan, the law prevents us from investigating alternative provision.

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Final decision

13. We cannot investigate Mrs X’s complaint because the law does not allow us to investigate.

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Investigator's decision on behalf of the Ombudsman