Summary: We cannot investigate this complaint about alternative and special educational provision. The complainant has used the right to appeal to the First-tier Tribunal (Special Educational Needs and Disability and this prevents us considering the provision made for her child.

The complaint

1. The complainant, Miss X, complains that the Council has failed to make alternative educational provision for her child while she was unable to attend school, and has failed to secure the therapies set out in her Education Health and Care (EHC) plan.

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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. 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. 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. Miss X’s child has special educational needs and had an EHC plan maintained by the Council. Miss X says her complaint relates to the 2024/2025 school year, during which she says her child was unable to attend school. The correspondence Miss X has provided shows that she had left the Council’s area by March 2025.
10. Miss X complains that the Council did not provide alternative education for her child. She says its duty under section 19 of the Education Act 1996 applied and that the Council was at fault in failing to discharge it. She further complains that the Council failed to secure Occupational Therapy and Speech and Language Therapy, despite this provision being in the EHC plan.
11. In response to the complaint, the Council said its section 19 duty was not engaged, and that it did secure the provision set out in the EHC plan. It based its position on the fact that it had named a school in the EHC plan which it believed was capable of meeting Miss X’s child’s educational and special educational needs. Miss X rejects this position, and says her child was not capable of attending the school.
12. The Ombudsman cannot investigate Miss X’s complaint. The correspondence she has provided shows that she used her right to appeal to the Tribunal against the content of the EHC plan. The law provides that we cannot investigate a complaint about a matter which has been the subject of an appeal. The period we cannot investigate starts from the date the appealable decision was made and ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded.
13. 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. 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, a parent’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. Whether the school named in Miss X’s daughter’s EHC plan could meet her needs is clearly a matter which the Tribunal could have considered. The Ombudsman cannot consider it. We can therefore take no view on whether the Council was at fault.

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Final decision

14. 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