Summary: We will not investigate this complaint about Council’s decision to name a mainstream school in a child’s Education Health and Care plan, and the suitability of the education provision whilst the complainant appealed the decision. This is because the complainant has used their right of appeal to a tribunal, and the matters she complains about are not separable from that appeal.

The complaint

1. The complainant, who I will call Ms X, complains about the school that the Council named in her child’s Education Health and Care (EHC) plan. Ms X says the Council should have made a reasonable adjustment and named a specialist placement. Ms X complains about the education provision in place whilst she appealed the Council’s decision.

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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.
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

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How I considered this complaint

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

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My assessment

8. Ms X complained about the Council’s decision to name a mainstream school on her child’s EHC plan. She says the Council should have made a reasonable adjustment to involve her properly in the process and that its decision to name a mainstream school caused her and her child distress.
9. I cannot investigate Ms X’s complaint. Ms X appealed the Council’s decision to name a mainstream school placement to the SEND Tribunal. This places the matter outside of our jurisdiction and we cannot consider the impact this decision had on either Ms X or her child.
10. I also can’t investigate Ms X’s complaint about the suitability of the education provision in place whilst she appealed. The courts have ruled that we cannot consider the educational provision made between the date the Council issued the EHC Plan against which someone appealed and the date of the appeal.

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Final decision

11. We will not investigate Ms X’s complaint because her appeal to the SEND Tribunal places these matters outside of our jurisdiction.

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Investigator's decision on behalf of the Ombudsman