Summary: We cannot investigate this complaint that the Council failed to make alternative educational provision for the complainant’s son, and failed to secure the provision set out in his Education Health and Care plan. The fact that she has used her right to appeal places the matters outside our jurisdiction.

The complaint

1. The complainant, Mrs X, complains that the Council failed to ensure her son received appropriate education and failed to ensure the delivery of his Education Health and Care (EHC) plan provision between September 2023 and March 2024

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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. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), 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.

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How I considered this complaint

5. I considered information provided by the complainant.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Mrs X’s son, who I will refer to as Y, has special educational needs. The Council issued an EHC plan, naming a school for him to attend from September 2023. Mrs X has appealed to the SEND Tribunal. She says her appeal concerns both the placement named in the EHC plan and the provision specified.
8. Mrs X says Y could not attend the school because it could not meet his needs. She contends therefore that the Council’s duty under Section 19 of the Education Act 1996 to make suitable alternative provision was engaged. She also says the Council’s duty to secure the EHC provision applied, whether or not he was attending the school. She complains that, despite the Council accepting that it had the duty to make appropriate arrangements for Y, it failed to do so between September 2023 and March 2024.
9. The Ombudsman cannot investigate Mrs X’s complaint. The fact that she used her right to appeal to the SEND Tribunal places the matters she has complained about outside our jurisdiction. There is no discretion available to us.
10. It is not for the Ombudsman to express a view on the suitability or otherwise of an educational placement. The courts have established that if someone has appealed to the SEND Tribunal, by law 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)
11. This means that if a child is not attending school and we decide the reason for non-attendance is linked to, or is a consequence of, a parent’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. That is the case here.
12. Mrs X has said her appeal relates to both the placement and provision set out in the EHC plan. The failure to make provision is clearly linked to those matters. So, the legal restriction applies. The period we cannot investigate starts from the date on which the EHC plan was finalised and ends when the appeal process concludes.
13. Due to the restrictions on our powers to investigate where there is an appeal right, there are cases where there has been injustice which neither we, nor the SEND Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).

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Final decision

14. We cannot investigate Mrs X’s complaint because the has used her right to appeal to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman