Summary: We cannot investigate Miss B’s complaint that the Council has failed to make appropriate educational provision for her son. This is because Miss B has used her right to appeal against the content of her son’s Education Health and Care Plan, and this places the matter outside our jurisdiction.

The complaint

1. The complainant, who I will refer to as Miss B, complains that the Council has failed to make appropriate educational provision for her son.

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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. (Local Government Act 1974, section 26(6)(a), as amended)
4. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))

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How I considered this complaint

5. I have considered what Miss B has said in support of her complaint and relevant correspondence provided by the Council.

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What I found

6. Miss B’s son has special educational needs and an Education Health and Care Plan (EHCP). Miss B says he cannot attend the school named in his EHCP and that the school says it cannot meet his needs.
7. The annual review of the EHCP was carried out in June 2020 and was followed by a reassessment. The Council says the amended EHCP was issued in October 2020. Miss B’s son’s current school was named. Miss B appealed to SEND against the named school.
8. Miss B says the Council agreed to put a bespoke package of education in place to meet her son’s needs and complains that it has failed to do so. She complains that, as a result, her son is not receiving any form of education.
9. The Ombudsman cannot investigate Miss B’s complaint. This is because the alleged failure she identified coincides with her appeal to SEND. The courts have held that, when an appeal to SEND is made, the Ombudsman has no jurisdiction to consider related issues from the date appeal rights became available to the point at which SEND issues its decision.
10. This restriction applies to Miss B’s complaint about the Council’s failure to make provision for her son. This is the case even though the appeal cannot provide a remedy for the loss of provision. We cannot investigate Miss B’s complaint. There is no discretion available to us in this matter.

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Final decision

11. We cannot investigate this complaint. This is because Miss B has used her right to complain to SEND.

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Investigator's decision on behalf of the Ombudsman