Summary: We will not investigate this complaint about how the Council conducted the process of naming an educational setting in an Education Health and Care Plan for Mrs X’s child. This matter is not separable from the content of the Plan, which was subject to a right of appeal to a Tribunal it was reasonable to use. We are considering the matter of alternative educational provision in another complaint.

The complaint

Mrs X said the Council sent a draft Education Health and Care (EHC) Plan to her on the same day in April 2023 it sent it to a school. She said the Council offered a place at the school before she provided her parental representations. She said that if the Council had told her previously about the school, she could have taken her child to see it and arranged trial sessions. She said she was not told about the school until three months later, by which time it had closed for the summer holidays. Mrs X also said the Council failed to send her all the consultation responses from all potential school placements that she requested during this time. She said her child has been out of education since 2022.

Back to top

The Ombudsman’s role and powers

1. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
2. 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)
3. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
4. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal…such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.
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.

Back to top

How I considered this complaint

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

Back to top

My assessment

8. We are currently investigating another complaint (23 012 233) by Mrs X about alternative educational provision in 2023. This complaint is separable from that one, but it is closely related.
9. There are two possible implications of Mrs X’s complaint. The first is that the Council created a fait accompli by not waiting for her parental views before pursuing a place at a specific school. However, that is not separable from any subsequent decision to name the school on the child’s EHC Plan, which would give a right of appeal to the SEND Tribunal if Mrs X was dissatisfied with the choice. The complaint about the Council not sending her the consultation responses of other schools supports the implication that she might have preferred other venues. But again, that would not be separable from the right of appeal to the SEND Tribunal if the Council named a school Mrs X did not find acceptable. It would be reasonable for Mrs X to have appealed to the SEND Tribunal if she disputed the choice of school.
10. The second possible implication is that the school the Council chose might have worked as an option if Mrs X’s child had had the opportunity to visit it before the summer holidays. This issue of timing is separable from the role of the SEND Tribunal in the sense that it is potentially not a question of which school was named, but of opportunity to receive educational provision generally. However, in the sense of integrating the child into education generally, it is not separable from complaint 23 012 233 regarding alternative educational provision.

Back to top

Final decision

11. We will not investigate Mrs X’s complaint because:

• Where the choice of school is concerned, the matters she complains of are not separable from the content of an EHC Plan, about which she had a right of appeal to the SEND Tribunal it would have been reasonable to use; and
• Where opportunity to successfully re-integrate into education is concerned, these matters are subject to investigation in complaint 23 012 233.

Back to top

Investigator's decision on behalf of the Ombudsman