Summary: We cannot investigate Mrs X's complaint the Council did not provide alternative provision to her child when they were too ill to go 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 child (G) when they were too ill to go to school. Mrs X said she funded part of G’s education and wants the Council to reimburse these expenses.
2. Mrs X also said the Council’s actions caused her and her family great distress and wants the Council to recognise this.

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The Ombudsman’s role and powers

3. 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.
4. 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)
5. 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

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

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My assessment

8. Mrs X said in February 2023, G had become very unwell and was struggling to access their education. In early March, they stopped going to school altogether.
9. Following this, the Council completed a review of G’s Education, Health, and Care (EHC) plan. In early May, it notified Mrs X of its decision that G’s existing school could meet their needs and named it in Section I (the placement).
10. Mrs X appealed this decision to the SEND Tribunal and asked for an education otherwise than at school package (EOTAS).
11. The Council conceded Mrs X’s appeal, and in November, the Council amended G’s EHC Plan and agreed to an EOTAS package. It finalised G’s EHC plan in January 2024.

Analysis

12. We cannot investigate Mrs X’s complaint the Council should have provided alternative provision for G. 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)
13. This means that 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 in the EHC Plan, we cannot investigate a lack of alternative educational provision.
14. Mrs X appealed the education placement saying G could not attend due to anxiety related matters. Therefore, because the request for alternative provision is not separable from the matters which Mrs X appealed, we cannot investigate.

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Final decision

15. We cannot investigate Mrs X’s complaint because she has used a right of appeal to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman