Summary: We cannot investigate Miss X’s complaint about the process the Council followed to name a school in her child’s Education Health and Care Plan. This is because Miss X has appealed this decision and the law does not allow us to investigate here. Nor can we investigate Miss X’s complaint about the education provision the Council secured, because this complaint is not separable from her appeal.

The complaint

1. Miss X complained the Council did not follow the correct process when naming a school in her child, Y’s, Education Health and Care (EHC) Plan. She said it used outdated information to consult with schools and named a school which Y cannot attend because it is not suitable. She said she experienced poor communication from the Council during this time.
2. Miss X also complained about how the Council handled her complaint. She said it did not consider all her points and delayed its response to her.
3. She wants the Council to name a school she feels can meet Y’s needs.

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The Ombudsman’s role and powers

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 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)
6. 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.
7. 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 further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

8. I considered information provided by the complainant.
9. I considered the Ombudsman’s Assessment Code.

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My assessment

10. Miss X complained to the Council about the process it followed to name a school in Y’s EHC Plan and its poor communication during this process. She said Y could not attend the school because it was unsuitable, and the Council failed to provide Y with an alternative education. She appealed to the SEND Tribunal about the school named in Y’s EHC Plan.
11. The Council accepted it had not provided Miss X with the expected standard of communication while it was considering the EHC Plan and apologised to her. It also apologised for delays in responding to her complaints. It said the SEND Tribunal would be best placed to resolve any disputes about the school named in Y’s EHC Plan.
12. We cannot investigate the process the Council followed to name a school in the EHC Plan. Miss X has appealed the Council’s decision to the SEND Tribunal. The law says we cannot investigate complaints where someone has appealed to the SEND Tribunal. We cannot tell the Council which school to name in an EHC Plan, only the SEND Tribunal can do this.
13. Nor can we investigate the Council’s failure to secure alternative education for Y. The courts have confirmed that we cannot look at the consequences of a council’s decision where the decision itself has been, or could be, the subject of an appeal. Miss X said the reason Y cannot attend school is because the school named in Y’s EHC Plan is not suitable. Therefore, this matter is not separable from the issues which have been appealed.
14. The Council has already apologised to Miss X for any poor communication she experienced during the consultation period. An investigation by us into this matter would not lead to a different outcome.
15. Finally, we will not investigate the Council’s handling of Miss X’s complaint. This is because it is not a good use of public resources to investigate complaints about complaint procedures, if we cannot deal with the substantive issue.

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Final decision

16. We will not investigate Miss X’s complaint because she has appealed to a Tribunal and the law does not allow us to investigate.

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Investigator's decision on behalf of the Ombudsman