Summary: We will not investigate this complaint about alternative educational provision for Miss X’s child. We are legally prevented from investigating what educational provision should have been made for the child after the Council issued a new Education Health and Care Plan that Miss X appealed against, and any period before then is too short for the Council to have had an alternative education duty.

The complaint

1. Miss X said the Council failed to make suitable educational provision for her child for 11 months, despite requests for alternative educational provision when she was unable to attend school.

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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. 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.
5. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal…such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.

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How I considered this complaint

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

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My assessment

8. The Council issued a new final Education Health and Care (EHC) Plan for Miss X’s child on 20 March 2023 and her appeal to the SEND Tribunal to resolve the matter was heard in October 2023. We cannot investigate the nature of the educational provision made for the child from 20 March 2023 onwards as it was a matter subject to an appeal to the SEND Tribunal.
9. However, councils with educational duties must offer alternative educational provision for a child whose absence from school due to illness or other valid reasons is notified to it and exceeds or is likely to exceed 15 school days. I have therefore considered if the Council was likely to have had a duty before 20 March 2023.
10. I have seen no evidence of a request to the Council for alternative educational provision before 15 June 2023. This date was after the Council issued the final EHC Plan Miss X appealed against. However, I have seen a letter from the child’s doctor dated 24 February 2023, which requested “absence from school” for two weeks. Even if that was seen by the Council, it was not a direct request for alternative educational provision. It also did not report an absence exceeding three weeks. Even if it had reported a longer likely absence and requested alternative educational provision to meet the child’s SEN, any duty to offer this would have only applied from 17 March 2023. That would have been 15 school days later, and three days before the Council issued the final EHC Plan that Miss X appealed against.

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Final decision

11. We will not investigate Miss X’s complaint because:

• We cannot investigate matters after 20 March 2023, which are closely connected with matters considered by the SEND Tribunal, to which Miss X exercised her right of appeal; and
• There is not enough evidence of fault by the Council before 20 March 2023 to warrant our involvement.

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Investigator's decision on behalf of the Ombudsman