Summary: We cannot investigate Ms X’s complaint about the Council’s failure to consult with her preferred school as part of her child, Y’s, Education, Health and Care (EHC) Plan. This is because Ms X has appealed the content of the EHC Plan to the SEND Tribunal, and the law says we cannot investigate. We will not investigate Ms X’s complaint about the Council’s complaints process because we cannot investigate the substantive complaint, and therefore an investigation by the Ombudsman is unlikely to achieve anything further.

The complaint

1. Ms X complained the Council:
• failed to consult with her preferred secondary schools regarding her child, Y; and
• about delays in the Council’s complaints process.
2. Ms X says the matter caused her frustration and distress.

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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. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• further investigation would not lead to a different outcome, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B)).

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.
6. 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).
7. 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).

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How I considered this complaint

8. I considered information provided by the complainant and the Council.
9. I considered the Ombudsman’s Assessment Code.

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My assessment

10. Ms X has a child, Y, who has an Education, Health and Care (EHC) Plan. In October 2023, the Council consulted with mainstream secondary schools in line with Ms X’s parental preferences. This included school A. School A did not respond to the Council’s consultation request.
11. In January 2024, the Council finalised Y’s EHC Plan. It did not name any of Ms X’s preferred schools. The following day, the Council sent another consultation to school A.
12. Ms X complained to the Council in early February 2024. Ms X said she had contacted school A and it told her it had not received a consultation for Y in October 2023.
13. School A responded to the Council’s most recent consultation in late February 2024. It explained it was full and could not admit Y.
14. The Council wrote to Ms X at stage one of its complaints process in late March 2024. It told her it had sent consultations to all the schools she requested. It did not uphold her complaint.
15. Ms X complained to the Council again. She said it had failed to consult with school A and should have followed up when it did not receive a response to the consultation in October 2023. Ms X also complained about delays in the Council’s complaints process.
16. The Council sent a final complaint response in April 2024. It apologised for the delays in the complaints process. It explained it sent consultations to all Ms X’s preferred schools in October 2023, but school A did not respond. It said it later sent another consultation, but the school said it was full. It did not uphold Ms X’s complaint, but said it acknowledged it could have chased school A when it did not respond in October 2023.
17. During the complaints process, because Ms X disagreed with the content of Y’s final EHC Plan, she undertook mediation with the Council. Mediation did not resolve the matter, and Ms X made an appeal to the SEND Tribunal in April 2024 about the named school in Y’s EHC Plan.

Analysis

18. We cannot investigate this complaint. Ms X said the Council failed to consult with her preferred school before it finalised Y’s EHC Plan, and about the Council’s later actions when consulting with school A. However, Ms X has appealed to the SEND Tribunal about the content of the EHC Plan, including the named school.
19. The courts have confirmed that we cannot investigate any matter which is part of, or connected to, a Tribunal appeal. Ms X’s dissatisfaction with the Council’s conduct regarding the school consultations is connected to the matters being appealed, and so we cannot investigate.
20. We will not investigate Ms X’s complaint about the Council’s complaint process. This is because it is not a good use of resources to investigate complaints about complaints handling when we cannot consider the substantive matter. In addition, the Council has already apologised for the delays. Therefore, there is no worthwhile outcome achievable by an investigation by the Ombudsman.

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Final decision

21. We cannot investigate Ms X’s complaint because she has used her right of appeal to the SEND Tribunal. We will not investigate Ms X’s complaint about the Council’s complaints procedure because there is no worthwhile outcome by an investigation by the Ombudsman.

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Investigator's decision on behalf of the Ombudsman