Summary: We will not investigate this complaint about how the Council has assessed a child’s Special Educational Needs. This is because the complainant has appealed to the Special Educational Needs and Disability Tribunal which places the matters raised outside of our jurisdiction.

The complaint

1. The complainant, who I will call Ms X, complains about how the Council has assessed her daughter’s Special Educational Needs (SEN). She says that since moving to the Council’s area her daughter has had no access to education.

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 how the Council has assessed Ms X’s daughters SEN under an Education Health and Care (EHC) plan. This is because the matter is subject to an ongoing appeal 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 education provision named in an EHC Plan we cannot seek a remedy for lack of education after the date the appeal right started. For this reason, we cannot investigate the education provision provided to Ms X’s daughter whilst the SEND tribunal have considered the appeal.

Back to top

Final decision

10. We will not investigate Ms X’s complaint because the matters are subject to an appeal to the SEND Tribunal.

Back to top

Investigator's decision on behalf of the Ombudsman