Summary: We will not investigate this complaint about the level of alternative provision the Council arranged for Mrs X’s son. She has used her right of appeal for her son’s Education, Health and Care Plan. The issues around alternative provision are not separable from this appeal.

The complaint

1. Mrs X complains the Council failed to provide her son with enough alternative provision from September 2024 onwards. This includes the special education provision outlined in his Education, Health and Care (EHC) plan. She says this has been affecting his academic progress.

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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. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
4. 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…”.
5. 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.

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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. Mrs X’s son, C, has an EHC plan. The Council issued a new plan in September 2024. This plan did not name a specific school for C to attend. Mrs X was unhappy with the plan and issued tribunal proceedings, this included an appeal about the setting C should attend.
9. Since 2023 the Council had provided C with a flexible learning placement. C did not attend this as Mrs X did not feel it could meet his needs. In September 2024 the Council arranged for C to receive one to one tuition through an alternative provision provider. Mrs X complains the Council has failed to provide full time provision for C and she disputes the provision offered is as much as C can cope with.

We will not investigate Mrs X’s complaint. Mrs X has appealed C’s EHC plan to the tribunal. We cannot investigate the educational provision arranged while the appeal was engaged. This is because the provision in place is not separable from the appeal itself.

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Final decision

10. We will not investigate Mrs X’s complaint because she has used her right of appeal, and her complaint is not separable from these matters.

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Investigator's decision on behalf of the Ombudsman