Summary: We will not investigate this complaint about how the Council dealt with matters concerning a child’s education. This is because the issues raised have either been appealed to the SEND Tribunal or are not separable from that appeal.

The complaint

1. Mrs X complains about how the Council has dealt with matters concerning her child’s education, she complains that the Council:
1. Named ‘Elective Home Education’ EHE in Section I of her child’s Education Health and Care (EHC) plan, forcing her to appeal to the SEND Tribunal.
2. Delayed arranging interim education provision while the Tribunal consider her appeal.
3. Refused to issue free school meal vouchers for her child.

Back to top

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.

Back to top

How I considered this complaint

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

Back to top

My assessment

7. Parents have a right to educate their children at home, this is often referred to as Elective Home Education (EHE). Parent’s that choose to educate their children at home assume full responsibility for costs associated with their child’s education. Mrs X’s child had been educated at home for several years.
8. In 2023, Mrs X made an application for an EHC needs assessment of her child’s needs. Mrs X asked the Council to name an Education Otherwise Than at School (EOTAS) package, to be funded by the Council, in the final EHC plan. The Council however issued a final EHC plan naming EHE in Section I. Mrs X appealed the contents of the EHC plan, including the Council’s decision to name EHE rather than EOTAS, to the SEND Tribunal.
9. I cannot investigate Mrs X’s complaint about the provision named in Section I of her child’s EHC plan. This is because Mrs X has appealed to the SEND Tribunal about the same matter, and it therefore falls outside of our jurisdiction.
10. I also cannot investigate Mrs X’s complaint about what education provision has been arranged while her appeal is waiting to be heard. The courts have established that if someone has lodged an appeal to the SEND Tribunal, we cannot investigate any matter that is closely linked to the matters under appeal. When issuing its final EHC plan, the Council concluded that Mrs X’s child’s education provision would be met by EHE. Mrs X disputes this and says the Council should implement an EOTAS package. This matter is therefore not separable from her appeal to the SEND Tribunal which will consider the suitability of the provision named in the Council’s final EHC plan.
11. I cannot investigate Mrs X’s complaint about free school meals for the same reason. The Council’s decision not to issue vouchers is based on its decision to name EHE on her child’s EHC plan and therefore this element is also not separable from the appeal itself.

Back to top

Final decision

12. We will not investigate Mrs X’s complaint because the issues raised have either been appealed to a tribunal or are not separable from that appeal.

Back to top

Investigator's decision on behalf of the Ombudsman