Summary: We have discontinued our investigation of this complaint, about the way the Council considered the educational placement for a child with an education, health and care plan. This is because the matter was subject to an ongoing appeal at the time, and therefore falls outside of our jurisdiction.

The complaint

1. I will refer to the complainant as Mrs D.
2. Mrs D complains the Council did not confirm her son, B’s, Year 7 educational placement by the statutory deadline of 15 February 2024; and that, as a consequence of this, she was forced to fund his education herself, when this should have been provided by the Council.

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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 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)
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.

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How I considered this complaint

6. I reviewed Mrs D’s correspondence with the Council.
7. I also shared a draft copy of this decision with each party for their comments.

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What I found

8. B has learning difficulties and has been subject to an education, health and care (EHC) plan for a number of years. He was due to start Year 7 in September 2024.
9. In July 2023 the Council completed a review of B’s EHC plan and decided to make no changes. In November, Mrs D submitted an appeal to the SEND Tribunal, seeking changes to several sections of the plan, including that concerning B's educational placement.
10. As B was due to transition to secondary school in September 2024, the Council was subject to a statutory deadline to issue a reviewed EHC plan, naming his secondary placement, by 15 February. Shortly before this deadline the Council consulted with several local secondary schools about whether they would be able to meet B’s needs, but each had replied in the negative by 15 February.
11. After further discussion with Mrs D, in May, the Council agreed to name ‘education other than at school’ (EOTAS) as B’s placement, which is what Mrs D had been seeking. However, it explained to Mrs D it could not formally name this placement, because there was a live appeal to the SEND Tribunal concerning the existing EHC plan.
12. While Mrs D accepts the Council could not formally reissue B’s plan at this point, she complains the Council could have formalised its decision by notifying the Tribunal, and then proceeded to make arrangements for B to receive EOTAS. Because the Council did not do so, she says she had to arranging and paying for this herself in the interim period,
13. Mrs D has also complained the Council wrongly informed the Tribunal it had agreed to name ‘elective home education’ (EHE) on B’s plan, not EOTAS. The Council has explained this an administrative error but Mrs D does not accept this explanation.

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Legislative background

14. A child or young person with special educational needs may have an EHC plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections.
15. The council must review and amend an EHC plan in enough time before to a child or young person moved between key phases of education. This allows planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year in which the child is due to transfer into or between school phases. The key transfers are: 

• early years provider to school;  
• infant school to junior school;  
• primary school to middle school;  
• primary school to secondary school; and  
• middle school to secondary school.  

16. There is a right of appeal to the Tribunal against:

• a decision not to carry out an EHC needs assessment or reassessment;
• a decision that it is not necessary to issue a EHC Plan following an assessment;
• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.

17. 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)
18. 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.
19. 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. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.

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Analysis

20. The law says we have no jurisdiction to investigate any matter which is subject to an appeal to court or tribunal, or is closely linked to another matter which is subject to appeal. We have no discretion to disapply this restriction on our jurisdiction.
21. In this case, the matter of B’s placement was subject to appeal to the SEND Tribunal during the relevant period. We therefore have no power to investigate the fact the Council did not formally name EOTAS as his placement after 15 February, or that it did not then make any arrangement to provide EOTAS, even after the Council agreed this was appropriate in May.
22. We do have the power to investigate any complaint Mrs D has about how the Council implemented EOTAS (or any other aspect of B’s EHC plan) after the conclusion of the appeal in September. However, Mrs D’s complaint to the Council pre-dated this, and so she would need to make a new complaint to the Council, and then to us, before we could accept it for investigation.

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Final decision

23. I have discontinued my investigation.

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Investigator's decision on behalf of the Ombudsman