• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• My assessment
• Final decision

The Ombudsman's final decision:

Summary: We cannot investigate this complaint about the complainant’s daughter suffering an alleged loss of education on account of being out of school. This is because Mrs W has lodged an appeal to the SEND Tribunal and the alleged loss of education is materially connected to a matter subject to that appeal.

The complaint

1. The complainant (Mrs W) complains on behalf of her young daughter (Child X) who has special educational needs (SEN). The Council maintains an Education Health and Care Plan (EHCP) for Child X. Mrs W complains the Council is not providing any education to Child X who is out of school due to a dispute about which school placement is best suited to meeting her SEN. Mrs W has appealed to the First-tier Tribunal (Special Educational Needs and Disability) in relation to the school placement. She also complains the Council’s communication with her over these issues has been inadequate.
2. In summary, Mrs W says the alleged fault has meant caused her distress, anxiety and uncertainty. She also says Child X’s education and wellbeing has been adversely affected. As a desired outcome, Mrs X wants the Council to find Child X a suitable school placement, communicate better with her and provide compensation for the alleged injustice.

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The Ombudsman’s role and powers

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. The First-tier Tribunal (Special Educational Needs and Disability) (SEND Tribunal) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
5. The courts have established that if someone has appealed to the SEND Tribunal, the law says we cannot investigate any matter which was part of, 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).

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How I considered this complaint

6. I considered information provided by the complainant and the Council. I also considered the Ombudsman’s Assessment Code.

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My assessment

7. The restrictions I outline at Paragraphs three and five (above) set out that, by law, we cannot investigate the consequences of a decision if investigation of the decision itself is excluded due to the complainant exercising their right of appeal to the SEND Tribunal. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHCP, we cannot investigate a lack of SEN provision, or alternative educational provision.
8. In January 2024, Mrs W lodged an appeal with the SEND Tribunal relating to Child X’s school placement. The matter of where Child X should attend for the purposes of her EHCP will be subject to the SEND Tribunal’s consideration as part of the appeal proceedings. We therefore have no legal jurisdiction to investigate this complaint. I recognise Mrs W also complains in respect of the Council’s conduct and communication with her on this issue. However, We cannot investigate the council’s conduct during an appeal. We also do not consider it is a good use of public resources to investigate complaints about an organisation’s complaints process if we have no legal basis to investigate the substantive issue.

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Final decision

9. We cannot investigate this complaint. This is because Mrs W has lodged an appeal to the SEND Tribunal and the alleged loss of education is materially connected to a matter subject to that appeal.

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Investigator's decision on behalf of the Ombudsman

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