Summary: We cannot investigate Mrs X’s complaint about the Council’s failure to provide alternative education for her daughter while she is out of school. This is because the issue is too closely related to the reasons for Mrs X’s appeal to the Special Educational Needs and Disability Tribunal.

The complaint

1. The complainant, Mrs X, complains the Council failed to put in place alternative educational provision for her daughter Y when she became too unwell to attend her school placement. Mrs X says the provision arranged by the school is insufficient and the Council has failed to ensure the provision set out in Section F of the Education Health and Care (EHC) Plan is available to Y while she is out of school.

Back to top

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 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)
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.

Back to top

How I considered this complaint

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

Back to top

My assessment

6. Y has experienced problems with her mental health since the start of the 2023/24 school year. Mrs X says this has prevented her from attending the setting named in her current EHC Plan and she believes the Council should therefore make alternative arrangements for her education as required by Section 19 of the Education Act 1996, as amended. She also believes the Council should do more to make available the provision required to meet Y’s special educational needs, set out in Section F of her EHC Plan.
7. The Council considers the setting named in Section I of Y’s EHC Plan is suitable to meet Y’s needs; it also says the provision required by Section F of her EHC Plan remains available for her at the school and it believes it has therefore met its duties.
8. Mrs X has appealed against the contents of the EHC Plan and this appeal will or could consider the suitability of the setting named in the EHC Plan. Mrs X’s arguments for Y’s non-attendance at that setting and the reasons she needs alternative educational provision are not separable from the reasons for her appeal and we cannot therefore consider them or decide whether the Council should have agreed to Mrs X’s request.

Back to top

Final decision

9. We cannot investigate this complaint because Mrs X has used her right of appeal to the SEND Tribunal.

Back to top

Investigator's decision on behalf of the Ombudsman