Summary: We cannot investigate Mrs X’s complaint about special education provision. This is because Mrs X has already appealed to a Tribunal about the Council’s decisions here, and her complaint is not separable from the matters the Tribunal will consider.

The complaint

1. Mrs X said the Council has not fully secured all her son’s special education provision (SEP) after it finalised his Education, Health, and Care (EHC) Plan. She also said it is not fully engaging with the tribunal procedures, and its communication with her about this matter was poor. Mrs X said this has caused her stress and concern the Council were not doing enough to meet her son’s needs.

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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. The courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
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. 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)

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How I considered this complaint

6. I considered information provided by Mrs X and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. In December 2023, the Council issued a final EHC Plan for Mrs X’s son. The Council did not name a school but said his placement would be a mainstream school. In January 2024, Mrs X lodged an appeal with the SEND Tribunal. According to the appeal papers, Mrs X appealed the final EHC Plan contents at Section B and Section F (SEP), as well as the Council’s decision at Section I (the placement).
9. Because the matters Mrs X is complaining about relating to her son’s SEP are not separable from the matters she is appealing, the law says we cannot look at this. Nor can we look at the Council’s conduct during the appeal process because the SEND Tribunal have extensive case management powers to address any procedural failings.
10. Mrs X has also complained about the Council’s communication with her over this issue. We will not investigate this, because where we are not looking at the substantive issue complained about, it is not a good use of our time to look at how the Council dealt with complaints about that issue.

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Final decision

11. We cannot investigate Mrs X’s complaint the Council has not secured her son’s SEP, because Mrs X has appealed to the SEND Tribunal about this.

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Investigator's decision on behalf of the Ombudsman