Summary: We will not investigate this complaint the Council failed to ensure the complainant’s child has access to suitable educational provision. Mrs X has used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) and this places the complaint outside the Ombudsman’s jurisdiction.

The complaint

1. Mrs X complained the Council failed to provide suitable education for her child Y.

Back to top

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. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the SEND Tribunal in this decision statement.
4. 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)

Back to top

How I considered this complaint

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

Back to top

My assessment

7. Mrs X’s child, Y has special educational needs and an Education Health and Care (EHC) Plan. She complains the Council failed to secure Y a place at a specialist school which can meet Y’s needs.
8. Mrs X complained the Council refused to provide suitable alternative provision, after it became clear to her Y could not go to the named school from January 2024.
9. Mrs X appealed the Council’s decision to name the school to the SEND Tribunal in February 2024.
10. Whether the school is suitable for Mrs X’s child is not a matter for the Ombudsman. As it is named on the EHC Plan, Mrs X had the right to appeal to the SEND Tribunal. She used that right. By law, this places the matter outside the Ombudsman’s jurisdiction. There is no discretion available to us.
11. Nor can we investigate Mrs X’s complaint the Council should have provided alternative provision for Y. The courts have settled that if someone has appealed to the Tribunal, 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)
12. As here the reason Y is not attending school is linked to, or is a consequence of, the family’s disagreement about the special educational provision, we cannot investigate a lack of special educational provision, or alternative educational provision.

Back to top

Final decision

13. We will not investigate Mrs X’s complaint because she has used her right to appeal to the SEND Tribunal.

Back to top

Investigator's decision on behalf of the Ombudsman