Summary: We cannot investigate Ms X’s complaint about the Council not securing alternative or interim education provision while her child is not attending school. Ms X has used her right to appeal to the SEND Tribunal and because these are matters which are linked to her appeal, the law does not allow us to investigate.

The complaint

1. Ms X complained the Council did not do enough to ensure her child had adequate education provision, while they were not going to school. She said it made a commitment it would enhance the learning offer for her child, but this has never happened.
2. Ms X said the Council’s actions have impacted on her wellbeing and has had a significant negative impact on her child.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. The courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
5. 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.
6. 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)

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How I considered this complaint

7. I considered information provided by Ms X and the Council.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. Ms X is the parent of a child (Y) who has an Education, Health and Care (EHC) Plan. Ms X told us Y had been on a modified learning programme for a considerable time and Y’s school (School A), held an emergency EHC review in February 2024.
10. Following this, the Council finalised Y’s EHC Plan and named School A as their placement and in the plan, it identified Y’s Special Education Provision (SEP), which it said would be delivered by School A. Ms X then lodged an appeal about Y’s EHC Plan with the SEND Tribunal. In Ms X’s complaint to us she said she wants the Council to remove the named school from Y’s EHC Plan.
11. Because Ms X has appealed to the SEND Tribunal about Y’s EHC Plan, we cannot investigate her complaint about the SEP or alternative provision the Council provides to Y. As I have highlighted at paragraph six, where someone has appealed to the SEND Tribunal, we cannot investigate any matter which was part of, was connected to the appeal to the tribunal.
12. This means that if a child is not attending an educational placement, and the reason for non-attendance is linked to, or not separable, or is a consequence of, a parent’s disagreement about the delivery of the SEP, or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
13. Furthermore, we cannot direct changes to an EHC Plan including the name of the educational placement. Only the SEND Tribunal or the Council can do this.

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Final decision

14. We cannot investigate Ms X’s complaint because Ms X has appealed the Council’s decision, and the law does not allow us to investigate here.

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Investigator's decision on behalf of the Ombudsman