Summary: We cannot investigate Miss X’s complaint about lack of education provision as Miss X has issued judicial review proceedings against the Council. It is reasonable to expect Miss X to complete the Children Act complaints procedure once court proceedings end.

The complaint

1. Miss X says the Council has failed to provide a suitable education to Y since January 2023 nor an out of school support.

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The Ombudsman’s role and powers

2. The courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916).

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How I considered this complaint

3. I considered information provided by the complainant and the Council.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. Miss X says the Tribunal ordered the Council to provide an Education Other than At School (EOTAS) in February 2025 for Y. Miss X says the Council has not provided the education and support as set out in the Tribunal Order. She issued Judicial Review proceedings against the Council because of this. This means we cannot investigate the Council’s provision of education.
6. Miss X complained to the Council in April 2023 about support for Y inside and outside of school including what type of placement Y should have. The Council considered her complaint within its Children Act statutory complaints’ procedure.
7. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. The accompanying statutory guidance, ‘Getting the Best from Complaints’, explains councils’ responsibilities in more detail. We also published practitioner guidance on the procedures, setting out our expectations.
8. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
9. If a complainant is not happy with a council’s stage one response, they can ask that it is considered at stage two. At this stage of the procedure, councils appoint an investigating officer (IO) to look into the complaint and an independent person (IP) who is responsible for overseeing the investigation and ensuring its independence.
10. Following the investigation, a senior manager (the adjudicating officer) at the council should carry out an adjudication. The officer considers the IO report and any report from the IP. They decide what the council’s response to the complaint will be, including what action it will take. The adjudicating officer should then write to the complainant with a copy of the investigation report, any report from the independent person and the adjudication response.
11. If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review by an independent panel.
12. Miss X requested a stage three review panel in January 2024. The Council has said it cannot undertake a stage three review panel whilst the judicial review proceedings and an SEN Tribunal was active. Councils can refuse to consider a complaint if a complainant says take legal action or if investigating a complaint could prejudice concurrent court proceedings. However, after the proceedings end, a complainant can resubmit the complaint for the Council to consider. We are unlikely to find fault in the Council decision to refuse a stage three complaint in Miss X’s circumstances.
13. The statutory children’s complaints procedure was set up to provide children, young people and those involved in their welfare with access to an independent, thorough and prompt response to their concerns. This independence is not available to complaints put through the corporate complaints’ procedure. Because of this, we expect people to complete the complaints’ procedure before we will consider whether there were any flaws in how the Council investigated their concerns. It is reasonable to expect Miss X to complain to stage three before we could consider her complaint which is not covered by the judicial review proceedings.

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Final decision

14. We cannot investigate Miss X’s complaint about lack of education provision because she has issued court judicial review proceedings. It is reasonable to expect Miss X to complete the Children Act statutory complaints’ procedure once court proceedings end.

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Investigator's decision on behalf of the Ombudsman