Summary: We will not investigate this complaint about the Council’s failure to provide suitable education for the complainant’s child when they were out of school. This is because the complainant has used their right of appeal to the tribunal and we are prevented from investigating matters that closely relate to an appeal.

The complaint

1. Mrs X complained the Council failed to provide her daughter with suitable alternative provision when she could not attend school for medical reasons.
2. She says her daughter has missed education and the provisions outlined in her Education, Health and Care (EHC) plan. She believes this has led to her daughter’s academic performance dropping.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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…”.
7. 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

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

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My assessment

10. Mrs X’s daughter, C, has an EHC plan. Mrs X disagrees the school named in the plan can meet her daughter’s needs. C has not attended school because of her special educational needs. Mrs X has appeal to the tribunal about the school named in the plan. She complains the Council has failed to provide suitable alternative provision while her daughter cannot attend school and the tribunal is continuing.
11. We will not investigate Mrs X’s complaint about the Council’s failure to arrange alternative provision. It is for the tribunal to decide whether the school named in the plan could meet C’s needs. C’s absence from school is linked to whether the school can meet her needs, so it is too closely related to the issues Mrs X has appealed and we cannot investigate a complaint about this.

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Final decision

12. We will not investigate Mrs X’s complaint because she has used her right of appeal to the tribunal about the educational placement named in the EHC plan.

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Investigator's decision on behalf of the Ombudsman