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Devon County Council (22 002 340)

Category : Education > Special educational needs

Decision : Closed after initial enquiries

Decision date : 20 Jun 2022

The Ombudsman's final decision:

Summary: We will not investigate this complaint about how the Council managed a child’s education provision. This is because the complainant has appealed to the Special Educational Needs and Disability Tribunal about the child’s education provision. The matter complained about is not separable from that and the courts have ruled we cannot say what education should be provided in such circumstances.

The complaint

  1. The complainant, who I will call Mr X, complains about how the Council managed his daughter’s education provision during his appeal about her provision to the Special Educational Needs and Disability Tribunal. Mr X says the Council cancelled funding for a placement then reinstated it without informing him, meaning his daughter missed out on provision.

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The Ombudsman’s role and powers

  1. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  2. 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.
  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

  1. I considered information provided by the complainant and the Council.
  2. I considered the Ombudsman’s Assessment Code.

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My assessment

  1. Mr X’s daughter has Special Educational Needs and is therefore subject to an Education Health and Care (EHC) plan. The Council named a school on the plan which Mr X felt could not meet her needs and she therefor did not attend. Mr X therefore appealed to the SEND Tribunal.
  2. Prior to Mr X’s appeal the Council arranged funding for alternative education provision. He was told that this funding would not be in place once he made his appeal. However, the funding was later reinstated but Mr X was not told. Mr X says this meant his daughter missed out on provision.
  3. 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 a child’s absence to be unconnected to the reason for the appeal.
  4. The above is not the case here. The reason Mr X’s daughter cannot attend school appears too closely linked to his special educational needs. These are set out in the EHCP which Mr X has appealed to the SEND Tribunal.

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Final decision

  1. We will not investigate Mr X’s complaint because the complaint is not separable from matters subject to an appeal to the SEND Tribunal

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Investigator's decision on behalf of the Ombudsman

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