Summary: We cannot investigate Mrs X’s complaint that the Council failed to secure the content of her child, Y’s, Education, Health and Care Plan and failed to organise alternative education for Y between September 2023 and January 2025. This is because Mrs X appealed to the SEND Tribunal, and the law says we cannot investigate.

The complaint

1. Mrs X complained the Council:
1. failed to deliver the content of her child, Y’s, Education, Health and Care (EHC) Plan to them between September 2023 and January 2025; and
2. failed to organise alternative provision for Y when they became unable to attend school between September 2023 and January 2025.
2. Mrs X said the matter caused her distress and frustration. She said it impacted on Y’s education.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. 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.
6. 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)
7. 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.

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How I considered this complaint

8. I considered information provided by the complainant.
9. I considered the Ombudsman’s Assessment Code.

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My assessment

Background

10. In summer 2023 the Council made a final EHC Plan for Y. Mrs X appealed the content of the EHC Plan, including the named school in section I, to the SEND Tribunal.
11. In September 2023 Y stopped attending the named school in section I of their EHC Plan. Mrs X said Y was unable to attend due to matters relating to the suitability of the school, its ability to meet Y’s needs, and the impact on Y’s mental health.
12. In January 2025 the SEND Tribunal issued a consent order instructing the Council to make a new final EHC Plan for Y.

Analysis

13. We cannot investigate Mrs X’s complaint. The courts have confirmed that we cannot investigate any matter which is part of, or connected to, a Tribunal appeal.
14. The reason Y did not receive the content of their EHC Plan is too closely related to the matter appealed to the SEND Tribunal – i.e., the suitability of the named school in section I of the EHC Plan. This includes the Councils duty to secure the content of Y’s EHC Plan under section 42 of the Children and Families Act 2014 and its duties under section 19 of the Education Act 1996.
15. Consequently, we cannot investigate this complaint.

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Final decision

16. We cannot investigate Mrs X’s complaint because the issues complained about are too closely related to matters appealed to a Tribunal.

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Investigator's decision on behalf of the Ombudsman