Summary: We cannot investigate this complaint about the Council’s alternative educational provision for Mrs X’s child while they were not at school. Mrs X has already used a right of appeal about a closely related matter, and the law says that we cannot investigate a lack of education.

The complaint

1. Mrs X said the Council failed to meet its duty to make suitable alternative educational provision for her child, Y, from September 2024 until June 2025. Mrs X said this meant Y could not complete their GCSE exams.

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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.

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How I considered this complaint

5. I considered information provided by the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Y is a child who has an Education, Health, and Care (EHC) Plan. Mrs X complained the Council did not do enough to secure an alternative education provision for Y, during a period they did not go to the school the Council named in Y’s EHC Plan. Mrs X said Y could not attend a mainstream school, because the environment was unsuitable.
8. In July 2024, the Council issued Y’s (EHC) Plan. Mrs X was unhappy with the Council’s decision on the school it named, and she appealed this decision to the Tribunal. Mrs X also appealed the special education provision (SEP) in the plan.
9. 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)
10. 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, a parent or young person’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.
11. Mrs X said the reason Y was not going to school was because a mainstream school environment was not suitable for them. Therefore, the reason for Y’s absence was linked to Mrs X’s disagreement about the Council’s decision on school placement. Because Mrs X appealed that decision, the law I have referred to in paragraph nine, says we cannot investigate this complaint.

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Final decision

12. We cannot investigate this complaint because Mrs X has already appealed a closely linked matter and the law does not allow us to investigate under these circumstances.  

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Investigator's decision on behalf of the Ombudsman