Summary: We cannot investigate Ms X’s complaint about the education provided for her child since September 2023. Ms X has appealed to a tribunal and so we have no power to investigate.

The complaint

1. Ms X complains the Council has not provided her child with suitable education since September 2023. She also complains about poor communication during the tribunal appeal process. She wants the Council to provide her child with suitable education and name a school that can meet their needs in the Education Heath and Care Plan.

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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. The limitations of our powers have been clarified by caselaw.
3. 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.
4. The courts have established that if someone has appealed to the SEND 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)
5. 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.
6. 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to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded.
7. 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). 
8. We cannot investigate the council’s conduct during an appeal. This includes anything a complainant could have raised with the tribunal at any stage of the appeal, or which the tribunal has considered on its own initiative, or which could have been a part of the tribunal’s deliberations in resolving the appeal (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)  

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How I considered this complaint

9. I considered information provided by the complainant.
10. I considered the Ombudsman’s Assessment Code.

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My assessment

11. The Council issued an Education, Health and Care (EHC) Plan for Ms X’s child, Y, in July 2023. Ms X disagreed with the education placement named in the plan and appealed to the SEND Tribunal.
12. Y did not start at the named school in 2023 and Ms X is currently awaiting the Tribunal hearing. The Council has provided some alternative education whilst awaiting the hearing, but Ms X says it has been insufficient to meet Y’s needs.
13. We cannot investigate Ms X’s complaint. Ms X has appealed to the SEND tribunal about the school named in Y’s EHC Plan and so we cannot investigate this. We also cannot investigate the education provided to Y since September 2023 as this is connected to matters being appealed. We cannot investigate or recommend a remedy for the claimed injustice for the period under appeal.
14. Ms X also complains about the Council’s behaviour during the appeal process. She says it has communicated with her poorly and failed to work with her on amendments to the working document. We cannot investigate the Council’s conduct during the appeal process. The courts have established that we have no power to do so.

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Final decision

15. We cannot investigate Ms X’s complaint because she has appealed to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman