Summary: We cannot investigate this complaint that the Council has failed to provide a suitable educational placement for the complainant’s son. This is because the complainant has used her right to appeal to the First Tier Tribunal (Special Educational Needs and Disability).

The complaint

1. The complainant, who I will refer to as Mrs X, complains that the Council has failed to provide an appropriate school placement for her son and has failed to respond to her request for alternative 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.
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 and the Council.
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 her son’s school placement has broken down and the school has said it cannot meet his needs. He has not attended since October 2022 and attempts at reintegration in October 2022 and January 2023 were unsuccessful.
8. In January 2023 the Council issued an amended EHCP, naming the current school as the educational placement. Mrs X says this is not appropriate for her son and says she has identified an appropriate school which can offer him a place.
9. Mrs X has used her right to appeal to the SEND Tribunal but does not believe her son should have to wait for the Tribunal to decide the matter. She wants the Council to provide an appropriate placement immediately. She says she has also asked the Council to make alternative provision in the interim and complains that her request has not been acted on.
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 of her son’s placement outside our jurisdiction. 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. This restriction applies to the school named on the EHCP, and to provision, or lack of it, made in the interim. There is no discretion available to us.

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Final decision

11. We will not 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