Summary: We cannot investigate this complaint the Council named a mainstream school placement in an Education, Health and Care plan. The complainant appealed to the Tribunal. Therefore, the law says we cannot investigate.

The complaint

1. Mrs X complained about the Council’s decision to name a mainstream school in her child’s Y’s Education, Health and Care plan (EHC plan). She said attending a mainstream school caused Y emotional distress.
2. She said the SEND Tribunal had provided advice to the Council about Y’s placement. She feels the Council did not follow this. She said that meant she had to pay for further assessments of Y and return to the SEND Tribunal. She wants the Council to financially reimburse some of her costs and to explain why it delayed moving Y to a different school.

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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. 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)
5. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
6. 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

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

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My assessment

9. Mrs X appealed the school named in Y’s EHC plan two times. On the first occasion, the SEND Tribunal said Y could remain in mainstream education. On the second appeal, the Tribunal supported her request for an independent school.
10. As the SEND Tribunal has considered the school named in Y’s EHC plan, the law says we cannot investigate. That includes any complaint Mrs X has that the Council delayed in considering whether Y needed a different school placement. That is because this complaint is not separable from Mrs X’s second appeal. The Council only had a statutory duty to provide what was specified in the final EHC plan following the outcome of the first SEND Tribunal.

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Final decision

11. We cannot investigate Mrs X’s complaint because she has appealed to Tribunal.

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Investigator's decision on behalf of the Ombudsman