Summary: We cannot investigate this complaint about educational provision for Ms B’s son. This is because Ms B has used her right to appeal to a statutory tribunal.

The complaint

1. The complainant, who I will refer to as Ms B, complains that the Council failed to make suitable 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. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
3. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.

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How I considered this complaint

4. I considered information provided by the complainant and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Ms B’s son has special educational needs. The Council issued him with an Education Health and Care Plan (EHCP) in June 2020. The EHCP set out that Ms B’s son’s needs could be met in a mainstream educational setting. Ms B disagreed with this conclusion and used her right to appeal to the SEND Tribunal.
7. The SEND Tribunal found in Ms B’s favour and the Council issued an amended EHCP in March 2021. Ms B says her son has special school provision in place from September 2021 and the Council has made some interim provision. Her complaint relates to the period between June 2020 and March 2021. She complains that the Council failed to make appropriate provision during this period and, as a result, her son was left without education.
8. The Ombudsman cannot investigate this complaint because Ms B used her right to appeal. The law provides that, when an appeal to the SEND Tribunal has been made, all matters relating to the issues which are subject to the appeal fall outside the Ombudsman’s jurisdiction. The Courts have confirmed that this restriction applies to provision made, or not made, between the date at which appeal rights were engaged and the end of the appeal process. There is no discretion available to us on this matter. We cannot investigate Ms B’s complaint.

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Final decision

9. We cannot investigate Ms B’s complaint because she has used her right to appeal to the SEND Tribunal.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman