Summary: We cannot investigate this complaint that the Council has failed to make appropriate educational provision for her son. This is because the complaint concerns matters which have been the subject of appeal to the First-tier Tribunal (Special Educational Needs and Disability), or are not separable from those matters.

The complaint

1. The complainant, Miss X, complains that the Council has failed to make appropriate educational provision for her son.

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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 Tribunal in this decision statement.

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How I considered this complaint

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

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My assessment

7. Miss X’s son has an Education Health and Care (EHC) plan. Miss X says the Council has failed to make educational provision for him since November 2022 and has failed to ensure the delivery of the therapies set out in the EHC plan.
8. Miss X says her son has not been capable of attending the school named in his EHC plan and that, despite this, the Council funds her son’s place at the school. She believes her son should be provided with Education Otherwise Than at School (EOTAS) and complains that the Council has failed to agree this provision.
9. The Ombudsman cannot investigate Miss X’s complaint because it concerns matters about which she has used her right of appeal to the Tribunal. Her key contention is that her son cannot attend the school named in the EHC plan, and that he should be provided with EOTAS. This matter was considered by the Tribunal. The decision it issued in January 2024 was that the school named in the EHC plan was appropriate and that EOTAS was not.
10. The fact that the matter was the subject of an appeal places it outside the Ombudsman’s jurisdiction by law and we cannot therefore criticise the Council for making this school place available. It is not for the Ombudsman to express a view on whether Miss X’s son is capable of attending.
11. The evidence shows that Miss X has also appealed to the Tribunal against the decision to name specialist provision in the EHC plan issued in May 2025 in preparation for her son’s transfer to the next phase of education. The grounds of appeal again set out her preference for EOTAS. The matter is therefore outside our jurisdiction and we cannot investigate it.

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Final decision

12. We cannot investigate Miss X’s complaint because it concerns matters which have been the subject of appeal to the Tribunal, or are not separable from those matters.

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Investigator's decision on behalf of the Ombudsman