Summary: We will not investigate Ms X’s complaint about education provided to her child, Y since September 2023. Ms X had a right of appeal to a tribunal about the school placements named in Y’s Education, Health and Care Plans and it was reasonable for her to use her appeal rights.

The complaint

1. Ms X complains the Council has not provided suitable education for her child, Y since September 2023. She says this has caused her and Y distress and affected their mental health. She wants the Council to provide her child with education going forward, apologise and compensate Y for the lost education.

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The Ombudsman’s role and powers

2. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
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 a right of appeal to the Tribunal, the law says we cannot investigate any matter which is part of, connected to, or could have been part of, an appeal. (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. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person.

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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. The Council issued a final amended Education, Health and Care (EHC) Plan for Ms X’s child, Y in September 2023.
9. Ms X was unhappy with the school named in the plan but did not appeal to the SEND tribunal.
10. Y did not attend the named school and the Council put in place some alternative provision. It held an annual review in January 2024 and issued a final amended EHC plan in March 2024. This plan named the same school as the educational placement.
11. Ms X was unhappy with the content of this plan but did not appeal to the SEND tribunal. In April 2024, the Council agreed to complete a reassessment of Y’s needs.
12. In its complaint responses to Ms X, the Council said the school named in Y’s EHC plans had been continuously available for them to access since September 2023. It also detailed the alternative provisions it had put in place and offered to Y to provide Y with education.
13. We will not investigate this complaint. If Ms X was unhappy with the school named in Y’s EHC plans, she had a right of appeal to the SEND tribunal following the issuing of final amended EHC Plans in September 2023 and March 2024. It was reasonable for her to use these rights of appeals. We cannot investigate the education provided for Y from September 2023 onwards as this is linked to Ms X’s disagreement with the named school.

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Final decision

14. We will not investigate Ms X’s complaint because she had rights of appeal about the educational placements named in her child’s Education, Health and Care Plans and it was reasonable for her to use these rights.

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Investigator's decision on behalf of the Ombudsman