Summary: Mrs X complained that the Council failed to provide all the provision set out in her child’s education, health and care plan, and that the school was inappropriate for her child. Mrs X said this caused unnecessary and avoidable distress, and had an impact on her child. We cannot investigate this complaint. This is because both parts of the complaint are outside the Ombudsman’s jurisdiction.

The complaint

1. The complainant, who I refer to here as Mrs X, complained the Council failed to provide all the provision set out in her child’s education, health and care plan. She also complained the school was inappropriate for her child because it could not meet their needs.
2. Mrs X said this caused unnecessary and avoidable distress, and there has been an impact on her child of not receiving the full provision.

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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. 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)
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.

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How I considered this complaint

6. I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments received before I reached a final decision.

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What I found

What we can and cannot investigate

7. A child or young person with special educational needs may have an education, health and care (EHC) plan. An EHC plan sets out the child’s needs and what arrangements should be made to meet them.
8. There is a right of appeal to the SEND Tribunal against the description of a child’s special educational needs, the special educational provision set out, the named school or placement, or that no school or other placement is specified.
9. 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)
10. There are occasions where we can look at special educational provision when an appeal is ongoing, but only where the provision is separable from the matter being appealed. We cannot investigate a failure to provide the provision if that is a consequence of the decision being appealed. Where the delivery of provision is not affected by the appeal, we can investigate.
11. The period we cannot investigate starts from the date the appealable decision is made and given to the parents. If the parent goes on to appeal then the period we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded.
12. 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).

What happened

13. Mrs X’s child, B, has an education, health and care (EHC) plan. B’s EHC plan was issued in September 2023. Mrs X complained to the Council that the school was not providing the provision set out in B’s EHC plan.
14. Mrs X appealed the EHC plan in December. She complained to us in February 2024. In March, the Council conceded the appeal and agreed to place B in a specialist setting, as Mrs X wanted.

My findings

15. Mrs X complained the Council failed to provide all the provision set out in her child, B’s, education, health and care (EHC) plan while they were at a particular school. This was from September 2023 until March 2024.
16. Mrs X told me the main point of her appeal against B’s EHC plan was that the school could not provide, and was not providing, the provision set out in the plan. She appealed against the provision set out in the EHC plan and the placement named in the plan.
17. In this case, Mrs X had the right to appeal the EHC plan from the date it was issued, in September 2023. The appeal was conceded in March 2024.
18. I find that the special educational provision for B is not separable from the matters being appealed. Failure to provide provision was a consequence of the decision Mrs X appealed. For this reason, we cannot investigate the part of Mrs X’s complaint about the failure to provide B’s special educational provision for the two terms in question.
19. Mrs X complained that the school was inappropriate for her child because it could not meet their needs. We cannot investigate this part of Mr X’s complaint because Mrs X had the right to appeal this decision, and she exercised this right. This means it is therefore outside our jurisdiction.

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Final decision

20. I have discontinued my investigation. We cannot investigate this complaint because it is outside our jurisdiction.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman