Summary: We will not investigate this complaint about a school named on a child’s Education Health and Care plan. This is because the complainant has appealed to the Special Education Needs and Disability Tribunal, which places this complaint outside of our jurisdiction.

The complaint

1. The complainant, who I will call Mrs X, complains that the Council named an unsuitable school placement on her son’s Education Health and Care (EHC) plan. Mrs X says this resulted in her son receiving an inadequate tutoring whilst she appealed to the Council’s decision to a tribunal.

Back to top

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

Back to top

How I considered this complaint

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

Back to top

My assessment

8. We cannot investigate Mrs X’s complaint that the Council named an unsuitable plan on her son’s EHC plan. This is because this matter has been appealed to the SEND Tribunal.
9. The courts have said that if someone has appealed to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that 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 school place named. For this reason we cannot investigate the education provision provided to Mrs X’s son whilst the SEND tribunal considered Mrs X’s appeal.

Back to top

Final decision

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

Back to top

Investigator's decision on behalf of the Ombudsman