Summary: We will not investigate this complaint about special educational needs provision for the complainant’s son. This is because the complainant has used her right to appeal to a tribunal and this places the related matters outside the Ombudsman’s jurisdiction.

The complaint

1. The complainant, who I will refer to as Mrs B, complains that the Council named an unsuitable school in her son’s Education Health and Care Plan (EHCP) and failed to secure suitable educational provision for him.

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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. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (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. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)

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How I considered this complaint

5. I considered information provided by the complainant.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Mrs B’s son has special educational needs. Mrs B complains that the Council issued him with an EHCP naming a school which it knew was not meeting those needs and would be unable to do so in future. She further complains that it failed to act to secure the provision set out in the EHCP.
8. Mrs B also complains that the Council allowed the school to make an unwarranted referral to Children’s Services.
9. The Ombudsman will not investigate Mrs B’s complaint. By law, we cannot consider the school’s alleged failure to meet Mrs B’s son’s special educational needs in the period before the EHCP was issued. Once the EHCP was issued, Mrs B used her right to appeal to the SEND Tribunal. This places all matters relating to her son’s special educational needs provision outside our jurisdiction. This restriction applies from the point at which appeal rights became available to Mrs B to the point at which the matter was resolved. There is no discretion available to the Ombudsman on this point.
10. The lack of provision made for Mrs B’s son during this period is inextricably bound up with her contention that the school named in the EHCP could not meet his needs. This was a matter subject to appeal and therefore falls outside our jurisdiction.
11. There are no grounds to investigate the Council’s failure to prevent the school from making a referral to Children’s Services. It is not for the Council to prevent anyone from making a referral and we will not intervene.

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Final decision

12. We cannot investigate Mrs B’s complaint because she has used her right to appeal to a tribunal and this places the related matters outside our jurisdiction.

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Investigator's decision on behalf of the Ombudsman