Summary: We cannot investigate this complaint that the Council’s failure to properly address the complainant’s child’s special educational needs denied her access to educational and special educational provision. Miss X used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) and this means the law prevents the Ombudsman from considering the key matters.

The complaint

1. The complainant, Miss X, complains that the Council’s failure to properly address her child’s special educational needs denied her access to educational and special educational provision between September 2023 and July 2024.

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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. 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)
6. 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

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

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My assessment

9. Miss X’s daughter has special educational needs and an Education Health and Care (EHC) plan. The Council issued her first EHC plan in August 2023. Miss X says that the school the Council named could not safeguard her daughter or meet her needs.
10. Miss X complains that the Education Health and Care Needs Assessment (EHCNA) the Council carried out and the process of consultation with educational settings were flawed. She argues that the Council’s unreasonable decision not to name an appropriate setting resulted in her having to use her right to appeal to the Tribunal, incurring significant financial cost and delaying her daughter starting school for the whole of the 2023/2024 school year.
11. Miss X says that the Council’s actions denied her daughter the education and the special educational therapies to which she was entitled. She contends that the Council’s duty to make alternative provision under section 19 of the Education Act 1996 was engaged, and that the Council failed to discharge it.
12. Miss X complains that the Council was at fault during the appeal process, failing to meet deadlines for the submission of evidence. She further complains that the Council delayed issuing an accurate Final EHCP following the consent order issued at the end of the Tribunal process.
13. The Ombudsman cannot investigate Miss X’s complaint. Her appeal to the Tribunal in October 2023 places the key matters outside our jurisdiction by law. There is no discretion available to us.
14. We cannot express a view on whether flaws in the conduct of the EHCNA led to a flawed EHC plan, or whether the school named in the EHC plan was appropriate for Miss X’s child. The alleged fault is not separable from the content of the EHC plan. Miss X’s recourse was to appeal to the Tribunal, which she did. The fact that she used her appeal right places matters relating to the EHC plan, including the evidence on which its content was based, outside the Ombudsman’s jurisdiction.
15. 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. This means that if a child is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent’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.
16. The period we cannot investigate starts from the date the appealable decision is made. If the matter goes to appeal, the period we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. That being the case, we cannot consider Miss X’s contention that the Council failed to discharge its section 19 duty to make alternative provision for her child during the appeal period.
17. The law does not permit us to investigate the Council’s conduct during the appeal, or any costs an appellant has incurred, and we cannot consider these aspects of Miss X’s complaint. The Council itself has the power to consider these matters and we cannot intervene.
18. The Tribunal issued a consent order in September 2024, and the resulting Final EHC plan was not issued until November 2024. The Council did not therefore issue the EHC plan within five weeks of the consent order, as it should have done. This delay is not, in itself, so significant as to warrant our intervention in the absence of other grounds to investigate the complaint.

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Final decision

19. We cannot investigate Miss 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