Summary: We will not investigate Miss X’s complaint about the Council not making educational provision for her child for two years. Miss X used her right of appeal to a tribunal against the Education Health and care Plan the Council issued in September 2023 and we cannot investigate the educational provision made after that date. Matters in the school year 2022-23 are late and Miss X could have approached us sooner about them, even if she did not receive the Council’s reply to her complaint.

The complaint

1. Miss X said the Council failed to make educational provision for her child for two years from 2022.

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. 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. 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)
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…”.

Back to top

How I considered this complaint

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

Back to top

My assessment

8. The Council issued an Education Health and Care (EHC) Plan for Miss X’s child in early September 2023. She used her right of appeal to the SEND Tribunal. We are unable to consider what education should have been provided for the child from the point the Council issued the EHC Plan. That matters were resolved before there could be a SEND Tribunal hearing does not affect the legal bar that prevents us investigating the matter.
9. Regarding matters in the previous school year 2022-23, Miss X was aware of her child’s lack of education at that time. She could have approached us about that much sooner, even if she did not receive the Council’s letter of response to the complaint she raised.

Back to top

Final decision

10. We will not investigate Miss X’s complaint because:

• Her appeal to the SEND Tribunal means we are unable to investigate matters after the date in September 2023 when the Council issued the final EHC Plan, at which point the legal judgement referred to in paragraph 6 was engaged; and
• Matters in the school year 2022-23 are late and there is no good reason to exercise the discretion available to consider them now.

Back to top

Investigator's decision on behalf of the Ombudsman