Summary: We will not investigate this complaint about alternative education provision. This is because the complainant has appealed to the Special Educational Needs and Disability Tribunal about the content of her son’s Education Health and Care Plan. The matter complained about is not separable from that. A court ruling means we cannot say what education should be provided in such circumstances, even if a child is not in education.

The complaint

1. The complainant, whom I shall refer to as Miss X, complains the Council has failed to make alternative education provision for her son since he has been unable to attend school.

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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. 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.
5. 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

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

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My assessment

8. Miss X has appealed to the SEND Tribunal against the content of her son’s Education Health and Care Plan (EHCP). Miss X says her son has not been able to attend school since November 2021 due to anxiety. She says the Council has not provided a suitable alternative education or delivered the contents of her son’s EHCP.
9. We can only investigate a complaint about a Council’s duty to offer alternative education provision if the matter is separable from an appeal to the SEND Tribunal. That would require the reason for absence to be unconnected to the reason for the appeal. For example, a child whose parent appeals against a refusal to assess, might then be unable to attend the usual school because of an injury.
10. The above is not the case here. The reason Miss X’s son cannot attend school appears too closely linked to his special educational needs. These are set out in the EHCP which Miss X has appealed to the SEND Tribunal.

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Final decision

11. We will not investigate Miss X’s complaint. This is because the complaint is not separable from matters subject to an appeal to the SEND Tribunal. The complaint is not one we can consider.

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Investigator's decision on behalf of the Ombudsman