Summary: We cannot investigate this complaint that the Council is failing to make alternative educational provision for the complainant’s daughter while she is not attending school. This is because the complainant has used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) and this places the matter outside our jurisdiction.

The complaint

1. The complainant, Mrs X, complains that the Council is failing to make alternative educational provision for her daughter while she is not attending 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 Tribunal in this decision statement.
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 the complainant.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Mrs X’s daughter has special educational needs and an Education Health and Care (EHC) plan. A place is available for her at the school named in her EHC plan. Mrs X’s daughter is not attending the school, and Mrs X complains that the Council is not providing alternative educational provision for her.
9. The correspondence Mrs X has provided shows that the Council believes the education offer provided by the school named in the EHC plan is appropriate. If that is the case, the duty to provide an alternative is not engaged. This is not a matter the Ombudsman can take a view on. This is because Mrs X has used her right to appeal to the Tribunal about the content of her daughter’s EHC plan, which places the matter outside our jurisdiction.
10. The courts have established 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, 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’s request for alternative provision flows from the fact that her daughter is not attending the school named in her EHC plan. It is therefore linked to the matters which are, or could be, part of the appeal. That being the case, the Ombudsman cannot investigate the complaint. There is no discretion available to us.

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Final decision

13. We cannot investigate Mrs X’s complaint because she has used her right to appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman