Summary: We cannot investigate Ms X’s complaint because she appealed to the Special Educational Needs and Disability (SEND) Tribunal.

The complaint

1. Ms X complained the Council:
1. Failed to share her son Y’s draft Education Health and Care (EHC) Plan with her
2. Issued a final EHC Plan which was rushed and inaccurate
3. Did not provide education from September 2023.
2. She said this caused Y a loss of education provision and meant she could not attend college.

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The Ombudsman’s role and powers

3. 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, 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)

4. 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 EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.

5. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded.

6. 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). 

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How I considered this complaint

7. I considered the complaint to us and the Council’s responses to the complaint. I discussed the complaint with Ms X.
8. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

9. Y has autism. The Council issued a first EHC Plan for him in July 2023. It named a mainstream secondary school as his education placement. Ms X appealed the placement to the SEND Tribunal.
10. Y was due to start secondary school in September. Ms X told me she did not send him because it was not suitable and the school said it could not meet his needs.
11. I cannot investigate Ms X’s complaint because of the Millburn case described in paragraphs three to six. The reason Y did not attend school was because of the disagreement about whether it could meet his needs or not. The failure to share a draft Plan with her is closely connected to this. We cannot investigate or recommend a remedy for the claimed injustice for the period under appeal.

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Final decision

12. We cannot investigate Ms X’s complaint because she appealed to the Tribunal.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman