Summary: We will not investigate Ms X’s complaint about education provided to B. It is either part of a Tribunal appeal or inextricably linked to it.

The complaint

1. The complainant, whom I shall call Ms X, says the Council failed to provide her child, B, with a suitable education.

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The Ombudsman’s role and powers

2. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the SEND Tribunal in this decision statement.
3. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)

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How I considered this complaint

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

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My assessment

Background

6. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
7. The Council is responsible for making sure that arrangements mentioned in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
8. The courts have ruled that if someone appeals to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the appeal. If a person disagrees with the placement named in an EHC Plan, we cannot seek a remedy for lack of education after the date the appeal right started if it is linked to the disagreement about the named school place. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).

Events and analysis

9. Ms X says her child, B, has an EHC Plan. She says she told the Council in July 2021 the school B attended was closing and B would need a new placement for September. The Council held a review in early August and then issued an amended Final EHC Plan.
10. Ms X was not happy with the EHC Plan and appealed to the Tribunal in mid October 2021. The Tribunal finished in May 2022. Ms X says the Council failed to provide B with the education they needed from September 2021. She says she incurred costs arranging and paying for education meanwhile.
11. We cannot investigate the same issues the Tribunal covered. We also cannot investigate those issues which are inextricably linked to the Tribunal appeal. This includes the provision B should receive. This means we cannot look at the period from when the appeal right arose, on publishing the amended EHC Plan, until the Tribunal finished. Any period before then is not significantly long enough to justify our investigation.

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Final decision

12. We will not investigate Ms X’s complaint because we cannot investigate matters subject to a SEND appeal or those which are inextricably linked to it.

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Investigator's decision on behalf of the Ombudsman