Summary: Mrs X complained about the Council’s failure to secure her child’s Education, Health and Care Plan provision and failure to provide alternative educational provision following their exclusion from school. I ended this investigation because Mrs X started Judicial Review proceedings against the Council about the same issues.

The complaint

1. Mrs X complained the Council failed to deliver the content of her child’s Education, Health and Care (EHC) Plan since 4 October 2024.
2. Mrs X also complained the Council failed to provide alternative educational provision for her child following their exclusion from school in December 2024.
3. Mrs X said the matter caused her frustration and distress and impacted her child’s education.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)
6. The courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)

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How I considered this complaint

7. I considered evidence provided by Mrs X and the Council as well as relevant law and our guidance on jurisdiction.
8. Mrs X and the Council had opportunity to comment on my draft decision before I made my final decision.

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What I found

Relevant Laws and Guidance

9. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. Once a council produces a child’s EHC Plan it must deliver the provision outlined within it. 
10. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
11. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)

Consideration

12. Mrs X brought a complaint to us about the failure of the Council to deliver her child’s EHC Plan provision since October 2024 and failure to provide suitable alternative educational provision for her child since December 2024.
13. During our investigation, Mrs X submitted a Judicial Review claim against the Council to the courts. Mrs X’s statement of grounds for Judicial Review included the failure of the Council to secure EHC Plan provision and the failure to make reasonable adjustments for her child to access education. The courts confirmed with the Council it put this matter forwards for Judicial Review.
14. The law says we cannot consider matters that have been raised in court. The issues Mrs X raised in her complaint to us are central elements to the Judicial Review Proceedings and we have no discretion to decide to investigate this complaint. Mrs X’s complaint about alternative provision of education for her child is not separable from the matters being considered by the courts through Judicial Review meaning we cannot investigate this matter.

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Decision

15. We cannot investigate Mrs X’s complaint because it relates to matters she has since submitted to the courts for Judicial Review. The law prevents us considering matters that are being considered as part of legal proceedings.

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Investigator's decision on behalf of the Ombudsman