Summary: We cannot investigate this complaint about the Council’s failure to make alternative educational and special educational provision for the complainant’s child. The complainant’s appeal to the First-tier Tribunal (Special Educational Needs and Disability) prevents us from doing so.

The complaint

1. The complainant, Mrs X, complains that the Council has failed to provide alternative educational and special educational provision for her child while he has been 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. 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.
5. 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…”.
6. 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

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

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My assessment

9. Mrs X’s child has an Education Health and Care (EHC) plan. Mrs X says her child cannot attend the school named in his EHC plan, as it cannot meet his needs. She contends that, in these circumstances the Council’s duty under section 19 of the Education Act 1996 to make alternative provision is engaged, and it retains its duty under section 24 of the Children and Families Act 2014 to secure the provision set out in the EHC plan.
10. Mrs X has used her right to appeal against the school named in the EHC plan. She says the section 19 and section 42 duties subsist throughout the appeal period and complains that the Council has declined to secure and make the provision.
11. The Ombudsman cannot investigate this complaint. 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.
12. This means that if a child is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, 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. Mrs X has appealed against the school named on the grounds that it cannot meet her son’s needs, so this restriction applies and we cannot investigate the complaint.

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Final decision

13. We cannot investigate Miss X’s complaint because she has used her right to appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman