Summary: We will not investigate Mrs X’s complaint about the education provision for G. This is because the complainant has appealed against the Council’s decision.

The complaint

1. Mrs X complains the Council failed to provide her son, G, with alternative provision after the school he was attending said it could not meet his needs. Mrs X says this has increased G’s anxiety and she has had to pay privately to fund his education.

Back to top

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. 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. We may decide to investigate if we consider it would be unreasonable to expect the person to use this right but cannot investigate if they have already used it. (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. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

Back to top

What I have and have not investigated

6. Mrs X previously complained to the Ombudsman about a lack of alternative provision between November 2022 and Mid-May 2023. As a result of that complaint, Mrs X received a remedy for:
• the distress and frustration experienced between these dates;
• the money she has paid educating G from November 2022 to mid-May 2023; and
• the loss of educational provision for G from November 2022 to mid-March 2023.
7. Mrs X also made a separate complaint about a delay in issuing an Education, Health and Care(EHC) Plan for G. In this complaint we found the Council was at fault and Mrs X received a remedy for:
• The loss of educational provision between March 2023 and June 2023.
8. Therefore, I have not considered these issues again, and have only looked at any loss of provision from June 2023 to January 2024.

Back to top

How I considered this complaint

9. I considered information from Mrs X. I made written enquiries of the Council and considered information it sent in response.
10. I also considered the Ombudsman’s Assessment Code.
11. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

My assessment

12. A final EHC Plan was issued for G in June 2023. Mrs X appealed to the SEND Tribunal in October 2023. She appealed against the description of her child’s Special Educational Needs (SEN), the special educational provision specified and type of school or placement specified.
13. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207).
14. In this case, the lack of provision is linked to the EHC Plan which only names a type of school. That has been appealed to the Tribunal. The provision available while the appeal is ongoing is not therefore something we can consider.
15. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person.
16. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 

Back to top

Final decision

17. I will discontinue this complaint. This is because Mrs X has lodged an appeal with the SEND Tribunal. The complaint therefore falls outside our jurisdiction.

Back to top

Investigator's decision on behalf of the Ombudsman