Summary: We cannot investigate Miss X’s complaint about the Council’s failure to secure the provision in her child, Y’s, Education, Health and Care (EHC) Plan or provide Y with a suitable alternative education. Miss X appealed to the SEND Tribunal. We cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal.

The complaint

1. Miss X complained the Council failed to secure the provision in her child, Y’s, Education, Health and Care (EHC) Plan and provide Y with a suitable alternative education between August 2024 and February 2025.

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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 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.

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How I considered this complaint

4. I considered evidence provided by the Council and Miss X as well as relevant law, policy and guidance.
5. Miss X and the Council have had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Education, Health and Care (EHC) Plans

6. 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. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the Tribunal or the council can do this. 
7. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan.
8. 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)
9. 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.

Background

10. Miss X’s child Y is of primary school age and attended school A which provided them with extra support for their special educational needs. Y struggled to attend school. Miss X made an earlier complaint to the Ombudsman about the Council’s efforts to provide suitable alternative provision for Y between September 2023 and July 2024. We found the Council was not at fault for its consideration of the suitability of Y’s education during this time.

What happened

11. The Council issued an Education, Health and Care (EHC) Plan for Y in August 2024. The Council named school A as Y’s placement in the Plan. Miss X told the Council school A could not meet Y’s needs and appealed the placement in the Plan to the Tribunal.
12. During the next term Miss X tried to take Y to school A but they could not engage in lessons. Miss X complained to the Council in November 2024. She said Y had not been able to attend school A for a year and it could not meet their needs. She said the Council was failing to provide Y with a suitable alternative education.
13. The Council responded to Miss X’s complaint in December 2024. It said Miss X had appealed to the Tribunal and that appeal included the suitability of school A. It said it would continue to look at fulfilling Y’s SEN provision while Miss X waited for the appeal hearing.
14. Miss X remained unhappy and asked the Council to consider her complaint at stage two of its complaint process. The Council rejected the stage two complaint as it said the Tribunal would address the suitability of Y’s EHC Plan.
15. The Council issued an amended EHC Plan in February 2025 naming school B. Miss X complained to the Ombudsman about Y’s education between August 2024 and February 2025.

My findings

16. We cannot investigate Miss X’s complaint for the reasons set out in paragraph 8 and 9. Miss X appealed the placement in Y’s EHC Plan to the SEND Tribunal. Miss X’s complaint about the Council’s failure to secure the provision in Y’s EHC Plan and a lack of alternative provision is linked to Mrs X’s disagreement with the placement identified to deliver that provision.

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Decision

17. We cannot investigate this complaint. It is not an issue the Ombudsman can deal with.

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Investigator's decision on behalf of the Ombudsman