Summary: We cannot investigate Miss X’s complaint about whether the Council provided a suitable education to a child with an Education Health and Care Plan during a Tribunal appeal. We cannot investigate issues which are not separable from that appeal.

The complaint

1. Miss X says the Council failed to provide a suitable education to her child, B, who has an Education Health and Care Plan (EHC Plan).

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The Ombudsman’s role and powers

2. 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.
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. 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

5. I considered information provided by Miss X, the complaint she made to the Council and its reply.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

Summary of Events

7. B has an EHC Plan which named School Y as the setting for their education. Following an annual review in September 2023 the Council told Miss X it would not amend the EHC Plan. Miss X appealed this decision to the Tribunal. She believed School Y could no longer keep B safe. B stopped attending School Y.
8. Miss X complained to the Council in December 2023 that the Council was not providing B with any education. The Council replied in August 2024 and January 2025. It said during the Tribunal process the place for B at School Y was available. It said School Y had offered alternative face to face tuition which it said Miss X had refused. It said this met the Council’s legal duty.

Analysis

9. 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)
10. 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.
11. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
12. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example: 

• support in an EHC Plan that is not being delivered to the child or young person and we decide the cause is not connected to an appeal that has, or should have, happened; and
• alternative education when the reason the child or young person is not attending education is, in our view, not connected to or is not a consequence of a matter that was, or could have been, part of an appeal to the Tribunal.  

13. From the information we have, these two bullet points do not apply to this complaint. B was out of school for the reasons Miss X says School Y was not suitable for them.

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Final decision

14. We will not investigate Miss X’s complaint because she appealed to the Tribunal. We cannot investigate whether the Council provided a suitable education during that appeal as what is a suitable education was the subject of the appeal.

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Investigator's decision on behalf of the Ombudsman