Summary: We will not investigate this complaint that the Council failed to make appropriate educational provision for the complainant’s child. This is because the complaint concerns matters about which the complainant had the right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) or are closely related to such matters, and it was reasonable for her to do so.

The complaint

1. The complainant, Miss X, complains that the Council failed in its duty to secure the delivery of the provision set out in her son’s Education Health and Care (EHC) plan and failed to make alternative provision for him while he was unable to attend 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. 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. 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)
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.
6. 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…”.

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How I considered this complaint

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

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My assessment

9. Miss X’s son has an EHC plan. The EHC plan issued in 2024 named a school in Section I which Miss X says could not meet her son’s needs. She says the school was clear that it was unable to do so and the Council was aware of this.
10. Miss X says her son stopped attending the school due to its inability to meet his needs. A new placement has now been identified for him. But she argues that the Council’s duties to secure alternative and special educational provision under Section 19 of the Education Act 1996 and Section 42 of the Children and Families Act 2014 were engaged.
11. Miss X’s complaint concerns what she regards as the Council’s failure to discharge those duties by making the alternative and special education provision to which her child was entitled. In response to the complaint, the Council has argued that the section 19 and section 42 duties were not engaged because appropriate education and special educational provision could be delivered at the school named in the EHC plan.
12. The Ombudsman will not investigate Miss X’s complaint. The matter turns on whether the school named in the EHC plan was capable of delivering appropriate education for Miss X’s child. That is not a matter on which we can express a view. Miss X’s recourse was to use her right to request a change of placement and, if this request was refused, to use her right to appeal. It would have been reasonable for her to do so. That being the case, the Ombudsman cannot intervene.
13. The correspondence shows that Miss X did initiate the appeal process, as a result of which the arrangements for her child’s education were changed. This does not mean we can look retrospectively at the period before the appeal. The fact that an appeal was made, whether or not it proceeds to a hearing, prevents us from considering matters which were the subject of the appeal, or are related to them. It remains the case therefore that we cannot intervene to consider the suitability of the school named in the EHC plan.

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Final decision

14. We will not investigate Mrs X’s complaint because it relates to matters about which she had the right to appeal to the Tribunal or are closely related to such matters.

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Investigator's decision on behalf of the Ombudsman