Summary: We cannot investigate this complaint that the Council has declined to reimburse the complainant’s school fees. This is because she has used her right to appeal to the First Tier Tribunal (Special Educational Needs and Disability) and the matter is inextricably linked to the subject of the appeal.

The complaint

1. The complainant, who I will refer to as Mrs X, complains that the Council is at fault in refusing her request for the reimbursement of school fees.

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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.
3. 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)
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.

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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 X’s son has special educational needs and an Education Health and Care Plan (EHCP). Mrs X says the Council failed to properly consider her son’s needs and, as a result, issued him with an EHCP which did not name her choice of school. She therefore used her right to appeal to the SEND Tribunal.
8. Mrs X says that, when the school of her choice offered her son a place, she felt compelled to accept. As a result, she has incurred school fees while waiting for her appeal to be heard. The SEND Tribunal subsequently directed the Council to name the school in the EHCP, thereby making it responsible for school fees from that point.
9. Mrs X argues that, as the SEND Tribunal agreed her son’s school should be named in the EHCP, the Council should reimburse her for the school fees she has already paid. The Council has declined to do so. It is about this decision that Mrs X complains.
10. The Ombudsman cannot investigate Mrs X’s complaint. This is because she has used her right to appeal to the SEND Tribunal. This places the matter outside our jurisdiction.
11. By law, the Ombudsman cannot consider matters which have been subject to appeal, or are inextricably related to them, from the point at which the EHCP was issued to the conclusion of the appeal process. Whether the appeal was upheld is not relevant. This restriction applies to the school named in Mrs X’s son’s EHCP. There is no discretion available to us. Given that we cannot consider whether the Council should have named a particular school, we cannot consider whether it should reimburse Mrs X’s costs.

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Final decision

12. We cannot investigate Mrs X’s complaint because she has used her right to appeal to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman