Summary: We cannot investigate Mrs B’s complaint that the Council has refused to reimburse her for school fees she incurred due to fault on its part. This is because Mrs B used her right to appeal against the content of her daughter’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 Mrs B, complains that the Council refused to reimburse her for school fees she incurred due to fault on its part.

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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 Mrs B has said in support of her complaint and in response to my draft decision.

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What I found

6. Mrs B’s daughter has special educational needs and an Education Health and Care Plan (EHCP). When her EHCP was reviewed and amended, the Council declined to name the school of her choice. It named a school Mrs B regarded as inappropriate for her daughter, so she used her right to appeal to SEND.
7. As her daughter was receiving no education, Mrs C placed her in a fee-paying setting which met her needs. The Council conceded the appeal on the date of the hearing. It has agreed to fund the placement Mrs B found.
8. Mrs B has asked the Council to reimburse her for the fees she incurred while waiting for the appeal hearing. The Council has declined to do so. Mrs B regards this decision as unreasonable.

9. The Ombudsman cannot investigate Mrs B’s complaint. This is because the alleged failure she identifies relates to the period when she was waiting for her appeal to be heard. 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 Mrs B’s complaint about the fees she incurred before the Council conceded the appeal. This is the case even though the appeal cannot provide a remedy for the financial loss. We cannot investigate Mrs 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 Mrs B has used her right to complain to SEND.

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Investigator's decision on behalf of the Ombudsman