Summary: We will not investigate this complaint about the Council not consulting with a school as asked by Mrs X. She had exercised her right to appeal to the Special Educational Needs and Disability Tribunal and the matter of which school might best meet her child’s needs is closely linked with that.

The complaint

1. Mrs X said the Council wrongly told her it had consulted with a school (School B) she thought might best meet her child’s needs when it had not yet done so.

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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. 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) 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 held that where someone has appealed to the SEND Tribunal, we have no authority to consider what educational provision should be made for the child concerned. (Local Government Act 1974, section 26(6)(a), R v the Commissioner for Local Administration ex parte PH, 1999);  R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407

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How I considered this complaint

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

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My assessment

8. Although the Council has accepted it failed to carry out the consultation Mrs X requested with School B, which it said was due to an oversight, we cannot investigate the matter. At the time she asked the Council to consult with School B, she had already appealed to the SEND Tribunal against its decision not to name School A in her child’s final EHC Plan. While it was reasonable for Mrs X to seek an alternative placement while waiting for the SEND Tribunal hearing that was a long time in the future, that is closely related to the decision the SEND Tribunal would have to make about the nature of the provision required to meet her child’s needs.

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Final decision

9. We will not investigate Mrs X’s complaint because the matter complained of is closely related to a matter where Mrs X has used her right of appeal to a Tribunal.

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Investigator's decision on behalf of the Ombudsman