Summary: We cannot investigate Mrs X’s complaint that the Council failed to arrange a suitable school placement or the special educational provision set out in her child’s Education, Health and Care Plan. These matters overlap with a SEND Tribunal appeal about her child’s Plan.

The complaint

1. Mrs X complains the Council named an unsuitable mainstream setting in her child, Child B’s Education, Health and Care Plan (EHC Plan). She says Child B has been unable to attend pre-school full-time since July 2024 and, because of this, she cannot work. Mrs X complains the Council has communicated poorly with her about her complaint and failed to follow its complaints procedure.

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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 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)
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.
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. Mrs X’s child, Child B, attends a pre-school. She says that, since July 2024, Child B has been unable to attend pre-school full-time because the pre-school cannot meet B’s special educational needs (SEN). Mrs X says that Child B needs to attend a specialist setting instead.
9. Mrs X says the Council has failed to secure Child B’s special educational provision in Child B’s EHC Plan. She says this has added to Child B’s difficulties attending pre-school
10. Based on the evidence I have seen, the Council first issued a final Plan for Child B in November 2024. The Council was not under a duty to secure the provision in Child B’s Plan before the Plan was finalised. Similarly, the Council’s duty to arrange suitable full-time education for children who cannot attend school due to, for example, illness or other reasons, only applies to children of compulsory school age. Child B is below compulsory school age meaning the Council’s duty does not apply here. For these reasons, there is not enough evidence of fault by the Council to justify investigating.
11. We cannot investigate Mrs Y’s complaint about the suitability of the placements named in Child B’s Plans from November onwards, or that the Council failed to arrange Child B’s special educational provision. These matters overlap with Mrs X’s SEND Tribunal appeal about the suitability of a mainstream setting and the adequacy of the provision in Section F of the Plan. Any dispute over provision while Child B was not in pre-school is linked to Mrs X’s appeal that a mainstream setting could not meet her child’s need and was against parental wishes.
12. It is not proportionate for us to consider Mrs X’s complaint about the Council’s complaint handling alone when we are not investigating the substantive parts of the complaint.

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Final decision

13. We cannot investigate Mrs X’s complaint that the Council failed to arrange a suitable school placement or the special educational provision set out in her child’s Education, Health and Care Plan. This is because these matters overlap with a SEND Tribunal appeal.

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Investigator's decision on behalf of the Ombudsman