Summary: We will not investigate Ms X’s complaint about the education provided to her child, Y, between March and July 2024 and the Council’s decision that it will not pay for home to transport. Ms X has appealed to a tribunal and there is insufficient evidence of fault.

The complaint

1. Ms X complains the Council did not provide her child, Y, with education between March and July 2024 and about its decision that it will not pay for home to school transport for the school named in Y’s Education, Health and Care (EHC) Plan. She says this has caused distress and financial loss. She wants the Council to pay the transport costs and improve its service.

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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)
3. 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)
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 Tribunal in this decision statement.
5. 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 there is not enough evidence of fault to justify investigating.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

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

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My assessment

8. We cannot investigate Ms X’s complaint about the decision not to fund home to school transport. This is because Ms X has appealed to the SEND tribunal about the content of Y’s plan and the transport decision is included in a section of the plan which has been appealed.
9. We will not investigate the education provided to Y between March and May 2024. It was Ms X’s choice to remove Y from the school in February 2024 as she did not feel it met Y’s needs. However, Y was on roll at the school and education was available for Y to access. There is insufficient evidence of fault to warrant an investigation.
10. The Council held an emergency annual review and issued a final amended plan for Y in May 2024, which named the same school. From this point, Ms X had a right of appeal to the SEND tribunal if she disagreed with the named placement. Ms X has since used this right. We cannot investigate the education provided for Y between May and July 2024 as the reason for Y’s non-attendance was a consequence of Ms X’s disagreement with the educational placement named in the plan.

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Final decision

11. We will not investigate Ms X’s complaint because she has used her right of appeal to the tribunal and there is insufficient evidence of fault.

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Investigator's decision on behalf of the Ombudsman