Summary: We cannot investigate Mrs X’s complaint about her child’s lack of education. The reasons her child is not attending school is integral to her Tribunal appeal.

The complaint

1. Ms X says the Council has failed to provide her child with an education, including failing to provide home to school transport.

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The Ombudsman’s role and powers

2. 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).

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How I considered this complaint

3. I considered information provided by Mrs X and the Council’s replies to her complaints.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. We previous considered a complaint from Mrs X in March 2024. This covered up to July 2023.
6. In November 2023 the Council issued a new amended Education Health and Care Plan (EHC Plan) for her child Y. Mrs X disagrees that this meets Y’s needs. In particular, she says the named setting cannot meet Y’s needs. Mrs X has appealed the EHC Plan to the Tribunal.
7. Mrs X says the Council has failed to provide home to school transport and Y is now out of school. The Council say the EHC Plan named school is available and Mrs X has refused to take Y to the school as she disagrees with it being suitable. The November 2023 EHC Plan says school transport is Mrs X’s responsibility.
8. The courts have established that if someone has appealed to the 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)
9. 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.
10. 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.
11. This applies to this case.

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Final decision

12. We cannot investigate Mrs X’s complaint because she has appealed to the Tribunal and the lack of education is integral to the reasons she has appealed.

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Investigator's decision on behalf of the Ombudsman