Summary: We cannot investigate this complaint about the Council’s failure to arrange suitable educational provision when Mrs X’s child became unable to attend school. This is because this complaint overlaps with Mrs X’s appeal to a tribunal about her child’s Education, Health and Care Plan. The law says we cannot investigate any matter connected to an appeal made to a tribunal.

The complaint

1. Mrs X’s child, Z, has an Education, Health and Care Plan (EHC Plan).
2. Mrs X complains the Council failed to arrange suitable alternative provision, including the special educational provision in Z’s Plan, when Z became unable to attend school. She says the Council poorly communicated with her about the matter and failed to respond to her calls.

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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 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)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
7. We will not usually investigate complaint handling if we are not investigating the rest of the complaint. This is because there is not usually enough injustice to justify us doing so. We collect information about particularly poor complaint handling practice and report this back to organisations. (Local Government Act 1974, section 24A(6), section 34B(8))

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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. In March 2025, Mrs X appealed to the SEND Tribunal about the placement named in Z’s EHC Plan from December 2024. Around the same time, Z became unable to attend school. Mrs X says this was due to increased anxiety and a lack of support from the school named in Z’s Plan.
11. In its complaint responses, the Council said it should have provided alternative educational provision for Z sooner.
12. We cannot investigate Mrs X’s complaint about the Council’s failure to promptly arrange suitable alternative provision for Z. This is because to do so would involve us looking at the Council’s decision about the educational placement in the EHC Plan and would therefore trespass on the Tribunal’s jurisdiction. The reasons for Z’s non-attendance are linked to Mrs X’s disagreement about the educational placement in the EHC Plan, which is the subject of her appeal. We cannot look at any matter that overlaps with the role of the Tribunal. The period we cannot investigate starts from the date the appealable decision is made and given to the parent. If the parent goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded.
13. It is not a proportionate use of our resources to investigate the Council’s complaint handling and communication with Mrs X alone when we cannot investigate the substantive matters. Any separable injustice to Mrs X is not significant enough to justify our further involvement. So, we will not investigate this matter as a standalone issue.

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Final decision

14. We cannot investigate this complaint about the Council’s failure to arrange suitable educational provision when Mrs X’s child became unable to attend school. This is because this complaint overlaps with Mrs X’s appeal to a tribunal about her child’s Education, Health and Care Plan.

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Investigator's decision on behalf of the Ombudsman