Summary: We cannot investigate this complaint about the Council’s failure to arrange alternative provision and any related matters because the complainant has issued judicial review proceedings against the Council.

The complaint

1. Mrs Y, on behalf of Ms X, complains the Council failed to discharge its statutory duty under Section 19 of the Education Act 1996 to provide Ms X’s child a suitable education when he stopped attending 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 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)
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). 
8. We cannot investigate the council’s conduct during an appeal. This includes anything a complainant could have raised with the Tribunal at any stage of the appeal, or which the Tribunal has considered on its own initiative, or which could have been a part of the Tribunal’s deliberations in resolving the appeal (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)  

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How I considered this complaint

9. I considered information provided by Mrs Y and the Council.
10. I considered the Ombudsman’s Assessment Code.

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My assessment

11. Ms X has an ongoing appeal with the Tribunal regarding Ms X’s child’s education, health and care needs.
12. Mrs Y, on Ms X’s behalf, has issued Judicial Review proceedings against the Council with regards to arranging a suitable education and alternative provision. This means we cannot investigate the Council’s provision of education and matters related to this.

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Final decision

13. We cannot investigate Mrs Y’s complaint about lack of education provision and alternative provision because she has issued court judicial review proceedings.

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Investigator's decision on behalf of the Ombudsman