Summary: We cannot investigate this complaint about the Council’s response to the complainant’s request for a change of educational placement for her child. The complaint concerns matters about which the complainant has used her right to appeal or are not separable from those matters, and therefore fall outside the Ombudsman’s jurisdiction.

The complaint

1. The complainant, Mrs X, says the Council unreasonably refused her request for a change of placement for her child, issued a flawed Education Health and Care (EHC) plan and failed to respond appropriately to her representations and subsequent complaints.

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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 Tribunal in this decision statement.
5. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal…such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.
6. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).

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How I considered this complaint

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

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My assessment

9. Mrs X’s son has an EHC plan. She says he has been unable to attend the school named in the EHC plan following an assault. The Council carried out an emergency annual review of the EHC plan in January 2024, and Mrs X says her request for a change of placement was agreed.
10. Mrs X’s complaint concerns the Council’s subsequent decision to decline to change her son’s placement. Rather, it issued the amended final EHC plan naming his current school, which Mrs X says he cannot attend. Mrs X argues that the consultation leading to the decision to issue the amended final EHC plan was flawed and the Council failed to communicate with her appropriately throughout the process following the emergency annual review.
11. Mrs X says that, despite the provision of off-site education, the failures on the Council’s part have denied her son the school place to which he is entitled. She made a formal complaint to the Council and is critical of the time it took to respond at both stages of its complaint procedure. She also used her right to appeal to the Tribunal about the school named in the EHC plan. She says the appeal could have been avoided if proper communication had taken place.
12. In response to her complaint, the Council accepts that it failed to communicate with Mrs X properly. It also agrees that it took too long to respond to her complaint. It has offered symbolic payments totalling £750 in respect of these matters. Mrs X argues that this does not recognise the significance of the fault.
13. The Ombudsman will not investigate Mrs X’s complaint. The matter turns on whether it was appropriate to name her son’s school in his EHC plan. That is not a matter on which we can express a view. Neither can we take any view on whether the off-site provision the Council made is appropriate. The fact that Mrs X has used her right to appeal to the Tribunal places these matters outside our jurisdiction.
14. 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. This means that we cannot consider the actions of the Council during the appeal process.
15. If a pupil is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, 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. The reason for Mrs X’s son’s non-attendance is not separable from the contention that he cannot attend the named school, so this restriction applies and we cannot investigate. There is no discretion available to us.
16. Where the substantive matter does not fall to be investigated, we will not normally consider how a council has responded to a complaint about it. It is not a good use of our resources to do so. That is the case here.
17. Mrs X says her appeal was vacated on the grounds that the Council would provide tutoring for her son, but it has not. This is a new matter which should be put to the Council in the first instance, and will not be investigated as part of this complaint.

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Final decision

18. We cannot investigate Mrs X’s complaint because it concerns matters about which she has used her right to appeal, or are not separable from those matters.

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Investigator's decision on behalf of the Ombudsman