Summary: We will not investigate Mrs X’s complaint about whether the Council has provided suitable education to Y. We cannot investigate this as the Tribunal is deciding what is a suitable education for Y.

The complaint

1. Mrs X says the Council failed to provide her child, Y, with a suitable education since December 2023.

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The Ombudsman’s role and powers

2. 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)
3. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions on special educational needs. We refer to it as the SEND Tribunal in this decision statement.

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How I considered this complaint

4. I considered information provided by Mrs X which included the Council’s response to her.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mrs X says Y has an Education Health and Care Plan (EHC Plan). She says that Y became unable to attend the school named in their EHC Plan in December 2023 due to health reasons. The Council held an annual review in early February. It amended the EHC Plan. It issued this amended EHC Plan at the beginning of April. Mrs X appealed the content of the EHC Plan as she says it will not meet Y’s needs.
7. Mrs X says the Council failed to provide a suitable education meanwhile.
8. The Council says the provision set out in the original EHC Plan was available throughout the period. The school provided a part time timetable while Y was out of school and the Council says it provided a package of support. It believes this met Y’s needs.
9. Mrs X decided to enrol Y at a private school and started paying the fees from after the Easter holidays. She says the Council should pay these fees.
10. The courts have settled that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
11. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
12. Mrs X says the Council’s offer and provision from December 2023 was not suitable. But what is suitable is the subject of the dispute before the Tribunal. We cannot therefore investigate whether the provision on offer from the issue of the amended EHC Plan in April 2024 onwards is suitable.
13. We also will not investigate the period from December 2023 to April 2024. The Council’s duty was to have the EHC Plan provision in place. This is not disputed and it is unlikely we would find fault. Whether Y needed different provision from the EHC Plan in place in December 2023, is too integral to the Tribunal appeal for us to be able to investigate it.

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Final decision

14. We will not investigate Mrs X’s complaint because she has appealed to the Tribunal which is deciding what education is suitable for Y.

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Investigator's decision on behalf of the Ombudsman