Summary: We will not investigate this complaint about how the Council dealt with the education of the complainant’s child. This is because the issue of alternative provision is not separable from an appeal about the content of an Education, Health, and Care Plan. Other maters are made late or there is insufficient evidence of fault by the Council.

The complaint

1. Ms X complains about how the Council dealt with matters concerning her child’s education. Ms X says the Councill failed to provide suitable education provision from November 2021 until July 2024. She also complains that the Council refused to pay for her child to attend her new school from May 2024.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
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.
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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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. Ms X’s child, Y, has an Education Health and Care (EHC) Plan. In April 2023, the Council updated the EHC Plan naming a mainstream school. Ms X appealed the contents of the EHC Plan, including the school named to the SEND Tribunal. Ms X felt the school named by the Council could not meet Y’s needs so the school put in place alternative education provision which ceased in October 2023. The SEND Tribunal appeal hearing concluded in June 2024 after the Council agreed to name a new school from September 2024.
9. I cannot investigate the education provision in place for Y between April 2023 and June 2024. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, or was connected to, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207). This means if a child or young person is not attending school, and the reason for non-attendance is linked to a parent’s disagreement about the educational placement or SEN in the EHC Plan, the law prevents us from investigating alternative provision.
10. I will not investigate Ms X’s complaint about the education provision in place before April 2023 because a complaint about this is made late and I see no good reason why it could not have been made sooner.
11. I will not investigate Ms X’s complaint that the Council refused to pay for Y to attend the new school from May. The Council complied with the Tribunal Order which stated that Y should attend the school from September 2024. The Council were satisfied that the school had a transition plan in place to begin at the start of the new school year. I see no evidence of fault in how the Council dealt with this matter.

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Final decision

12. We will not investigate Ms X’s complaint because some matters are not separable from an appeal to a tribunal, some matters are late and there is insufficient evidence of fault with how the Council has dealt with other matters.

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Investigator's decision on behalf of the Ombudsman