Summary: Mrs X complained about the Council’s handling of her child, Y’s education since March 2023. I cannot investigate matters between March and November 2023 because they are outside of our jurisdiction as Mrs X had appealed to the SEND tribunal. Mrs X should first complain to the Council about matters after November 2023.

The complaint

1. Mrs X complained the Council has failed to provide an appropriate education for her child Y who has an Education, Health and Care (EHC) Plan since March 2023.
2. Mrs X said the matter is impacting on her child’s education and causing distress and uncertainty.

Back to top

The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended).
5. 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.
6. The law says that, before investigating a complaint, we must normally be satisfied the Council has had an opportunity to investigate and reply.

Back to top

How I considered this complaint

7. I spoke to Mrs X about her complaint.
8. I considered information from the Council.
9. Mrs X and the Council had an opportunity to comment on the draft decision. I considered comments before making a final decision.

Back to top

What I found

Education, Health and Care Plans

10. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document 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 their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.

Appeal rights

11. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207).
12. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
13. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin
14. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded.

What happened

15. Mrs X has a child, Y who has an EHC Plan which the Council issued during 2022, naming a mainstream school (School 1). Child Y did not attend School 1 as Mrs X believed it could not meet Y’s needs. In September 2022 Mrs X appealed both the content and the placement named in Y’s EHC Plan to the SEND tribunal.
16. Y remained out of school while Mrs X waited for her appeal to be heard.
17. In October 2023 the SEND tribunal ordered the Council to amend Y’s EHC Plan and to put in place an EOTAS (Education other than at School) package for Y. The Council issued Y’s amended EHC Plan in November 2023 which is when the EOTAS package came into effect.
18. Mrs X complained to the Council in 2023 about a lack of education for Y since March 2023. The Council issued a final response which referred to the ongoing tribunal process at the time.
19. In May 2024 Mrs X complained to us. She complained about matters in 2023 when Y was out of school not receiving any education. She also referred to issues since the Council issued the amended EHC Plan in November 2023 including a lack of personal budget and some of the EOTAS provision not being in place.

My findings

20. Part of Mrs X’s complaint is about Y’s lack of education between March and November 2023 when they were not attending the named placement. Due to the restrictions on our jurisdiction as outlined above I cannot investigate Y’s lack of education during that period. This is because Mrs X had appealed to the SEND tribunal against both the content and the naming of School 1 in the EHC Plan and Y’s absence from school during that period was not separable from the appeal.
21. The rest of Mrs X’s complaint is about newer matters since the Council issued the amended EHC Plan in November 2023. There is no evidence Mrs X has yet complained or raised these issues with the Council which is what we expect, in line with the law, before we will consider a complaint. Mrs X can complain to us again about matters after November 2023 if she remains dissatisfied once she has completed the Council’s complaints procedure.

Back to top

Final decision

22. I ended this investigation. Part of Mrs X’s complaint is outside of our jurisdiction and she needs to complain to the Council first about the other matters.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman