Summary: The Ombudsman cannot investigate Mrs X’s complaint the Council is failing to educate her child. The Tribunal is considering the suitability of the Council’s proposed education. We should not investigate the events for the period before the Tribunal until its decision is known as it is not possible to know the extent of any injustice until then.

The complaint

1. The complainant, whom I shall call Mrs X, says her child, B, has been out of school since March 2019.

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The Ombudsman’s role and powers

2. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
3. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word 'fault' to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation. (Local Government Act 1974, section 24A(6), as amended)
5. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

6. I considered the information Mrs X provided with her complaint and the Council’s replies to her. Mrs X had the opportunity to comment on a draft version of this decision.

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What I found

7. Mrs X says that her child, B, has been out of education since March 2019. She says the Council has not offered B a suitable or safe school. She says B has not been offered any alternative provision.
8. The Council replied to Mrs X’s complaint in September 2020. It said it had prepared for B an Education Health and Care Plan (EHC Plan). The Council provided a final version in February 2020. The EHC Plan named School Y as suitable for B and a place at School Y was available for B. It said it understood Mrs X and B had not engaged with School Y to enable B to start there. It also said Mrs X had appealed the EHC Plan to the Tribunal SEND. It said the hearing is set for December 2020.

Analysis

9. We cannot investigate whether School Y is appropriate for B as the Tribunal is considering this. We cannot investigate if the education offered from February 2020 until the Tribunal’s decision is appropriate as long as the provision set out in the EHC Plan is on offer and available. I understand it is.
10. We could investigate the education provided from March 2019 up to February 2020. But it would not be appropriate to do so while the Tribunal considers the EHC Plan. It is not possible to work out the extent of injustice to B and Mrs X of any delays between March 2019 and February 2020 until the final EHC Plan, and therefore the education B should receive, is known.

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Final decision

The Ombudsman should not and cannot investigate this complaint. This is because we cannot investigate the same issues the Tribunal is considering and it is not possible to assess the injustice for the period before the Tribunal until its decision is finalised.

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Investigator's decision on behalf of the Ombudsman