Summary: We cannot investigate Mrs X’s complaint that the Council failed to deliver the content of her child’s Education, Health and Care Plan because she used her right of appeal to the SEND Tribunal and the law says we cannot investigate. We will not investigate the remainder of the complaint because the injustice claimed is not significant enough to warrant an investigation.

The complaint

1. Mrs X complains the Council:
1. failed to provide alternative education to Y when they became too unwell to attend school in October 2024; and
2. failed to deliver the content of Y’s Education, Health and Care (EHC) Plan since January 2025.
2. Mrs X said the matter caused her frustration and distress.

Back to top

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 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 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)
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)
7. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’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.
8. 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 any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

Back to top

How I considered this complaint

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

Back to top

My assessment

Education after January 2025

11. We cannot investigate Mrs X’s complaint that the Council failed to deliver the content of her child, Y’s, EHC Plan. This is because Mrs X appealed the content of Y’s EHC Plan, including the named school, to the Tribunal.
12. The reason Y is not attending school is too closely related to the reason Mrs X appealed to the SEND Tribunal. Consequently, the restriction on our powers to investigate as explained at points six and seven above apply, and the law says we cannot investigate.

Education between October 2024 and December 2024

13. We will not investigate Mrs X’s complaint that the Council failed to provide alternative education to Y during this period. This is because the injustice claimed is not significant enough to warrant our investigation for this short duration.
14. Because we cannot investigate matters after January 2025, the period we could consider between October 2024 and December 2024 when accounting for school holidays and other factors such as when the Council first became aware of Y’s non-attendance, limits the injustice to a level which does not justify our involvement. Therefore, we will not investigate this complaint.

Back to top

Final decision

15. We cannot investigate some of Mrs X’s complaint because she used her right of appeal to the SEND Tribunal. We will not investigate the remainder because the injustice claimed is not significant enough to warrant an investigation.

Back to top

Investigator's decision on behalf of the Ombudsman