Summary: We will not investigate this complaint about the Council failing to make alternative provision when the complainant’s daughter stopped attending school. This is because the complainant has used their right of appeal to the Tribunal, and this places the matter outside of our jurisdiction.

The complaint

1. Miss X complains the Council failed to put in place alternative provision for her daughter and ensure she received her Education Health and Care (EHC) plan provision.

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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. 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

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

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My assessment

8. Miss X’s daughter, C, has an EHC plan. Following a review in April 2023 Miss X appealed the plan to the tribunal. Her appeal included sections F and I of C’s EHC plan. The Tribunal vacated the hearing several times and did not hear the matter until late 2024.
9. C’s EHC plan included Speech and Language Therapy (SALT) and Occupational Therapy (OT). C did not engage with the SALT or OT provision in the autumn term of 2023. In December 2023 the contract with the company which provided SALT and OT at the school ended. The Council arranged for provision to be provided online until it had been able to source in school provision. C did not undertake the online provision as PA did not feel it was not with a trusted adult which C had built a relationship with.
10. C stopped attending school in early March 2024. Miss X complains the Council failed to arrange alternative provision for her daughter during this time and failed to ensure she received the provision outlined in her EHC plan.
11. The law says we cannot investigate any matter which was part of, 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)
12. This means if we decide a child’s non-attendance or lack of provision is linked to, or a consequence of, the 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.
13. The Council’s response to Miss X’s complaint shows it believed the school named in the EHC plan was suitable until the summer term of 2024. It says it then arranged alternative provision in line with the Education Otherwise than at School provision Miss X was seeking as part of the tribunal.
14. Miss X’s request for alternative provision flows from her daughter not attending the school named in her EHC plan. It is therefore linked to the matters which were part of the appeal. Similarly, her concerns about EHC provision are linked to matters which were part of the tribunal. That being the case, the Ombudsman cannot investigate the complaint.

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Final decision

15. We will not investigate Miss X’s complaint because she has used her right of appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman