Summary: We will not investigate this complaint about the education provided for the complainant’s son when Mrs X withdrew him from school. This is because Mrs X appealed the Council’s decision the school place was suitable. This places the complaint outside our jurisdiction.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complained the Council failed to provide her son with a suitable education between May 2023 and January 2024.

Back to top

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 SEND Tribunal in this decision statement.

Back to top

How I considered this complaint

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

Back to top

My assessment

7. Mrs X withdrew her son (Y) from his school in May 2023. Mrs X said the school had failed to meet his needs and there had been a history of bullying. The Council reviewed Y’s EHC Plan and Mrs X appealed to the SEND Tribunal in July 2023. Mrs X’s appeal included the school named in the EHC Plan. The Council conceded the appeal at the end of November 2023 and agreed to name a different school. Y started at their new school in January 2024.
8. The Council has responded to Mrs X’s complaints about a lack of education. It said that Y had remained on roll at their school, and it had offered alternative provision. Mrs X was not happy with the offer, but the Council considered it suitable.
9. In this case, Y’s non-attendance at school was linked to their SEN and the suitability of the school named in their EHC Plan. When this happens, we would expect the Council to review the EHC Plan and decide whether to amend it. The parent(s) then have a right of appeal to the SEND Tribunal against the placement and other content of the EHC Plan.
10. In this case the Council reviewed the EHC Plan and decided the school named was suitable. It contends the education offered was appropriate. Mrs X disagreed with the school named and appealed to the SEND Tribunal.
11. When a parent has appealed the law says we cannot investigate from the point the appeal rights were engaged until the Tribunal issues its decision. This applies even where the appeal will not provide a full remedy for the matters complained about. The setting and provision were considered by the Tribunal. Y’s absence from school and the education provided are both linked to the matter appealed and are therefore outside our jurisdiction. Mrs X’s complaint is not one we will investigate.

Back to top

Final decision

12. We will not investigate Mrs X’s complaint because she has appealed to the SEND Tribunal. The complaint is outside our jurisdiction.

Back to top

Investigator's decision on behalf of the Ombudsman