Summary: We will not investigate this complaint about alternative education provision and a Council officer contacting Mrs X’s child’s doctor. These matters are not separable from the differing views about the content of the child’s Education Health and Care Plan, which is for the Special Educational Needs and Disability Tribunal.

The complaint

1. Mrs X said the Council failed to make educational provision for her child when he could not attend school. She also said a social worker wrongly approached her child’s GP.

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The Ombudsman’s role and powers

2. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (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.
4. The courts have held that where someone has appealed to the SEND Tribunal, we have no authority to consider what educational provision should be made for the child concerned. (Local Government Act 1974, section 26(6)(a), R v the Commissioner for Local Administration ex parte PH, 1999);  R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407

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How I considered this complaint

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

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My assessment

7. It is clear from the correspondence between Mrs X and the Council that there has been an appeal to the SEND Tribunal about the suitability of the content of her child’s Education Health and Care (EHC) Plan. It is for the SEND Tribunal to decide what that provision should be and where it should be made. The issue of alternative educational provision centres on whether the provision the Council has named is suitable. A social worker contacting a GP for information also directly relates to the dispute about the necessary provision. That the Council may have chosen to address the matter via its complaints process has no effect on the limitations imposed on the Ombudsman by law.

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Final decision

8. We will not investigate Mrs X’s complaint because the matters complained of are not separable from the educational provision and setting most suitable for Mrs X’s child, which is a matter for the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman