Summary: We will not investigate this complaint that the Council has failed to make educational and special educational provision for the complainant’s daughter. This is because the complaint is not separable from matters about which the complainant appealed, or could have appealed, to the First-tier Tribunal (Special Educational Needs and Disability).

The complaint

1. The complainant, Mrs X, complains that the Council has failed to make educational and special educational provision for her daughter while she has been unable to attend school.

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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. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (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.
5. 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)
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. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 

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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

10. Mrs X’s daughter has special educational needs. Mrs X initially applied for an EHC plan for her in 2024, which the Council declined to issue. Mrs X used her right to appeal to the Tribunal in August 2024.
11. Mrs X’s daughter started secondary school in September 2024 but struggled with attendance. She ceased attending in February 2025. Mrs X attributes her daughter’s difficulties with attendance to the school’s failure to meet her special educational needs.
12. It is Mrs X’s contention that the Council’s duty under section 19 of the Education Act 1996 to make alternative educational provision was engaged from February 2025, and she complains that it did not do so.
13. The Council conceded the appeal and issued an EHC plan in May 2025. The EHC plan names Mrs X’s daughter’s current school, which Mrs X says she cannot attend. As such, she complains that the Council is failing to secure the provision set out in the EHC plan.
14. The Ombudsman cannot investigate Mrs X’s complaint that the Council has failed to make appropriate provision for her daughter. This is because the matter turns on whether her daughter’s school can meet her needs. The Council holds that it can, and that both educational and special educational provision can be delivered by the school. Mrs X believes they cannot. That is not a matter the Ombudsman can determine.
15. Mrs X appealed to the Tribunal before her daughter started at the school in September 2024. She says she provided evidence to the Tribunal regarding the school’s inability to meet her daughter’s needs. The suitability or otherwise of the school was clearly therefore a matter before the Tribunal and which the Tribunal could have considered.
16. 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. This places the suitability of the school outside the Ombudsman’s jurisdiction and we cannot consider it. The fact that the Council conceded and the appeal did not proceed to a hearing is not relevant. Given that we cannot consider whether the school is suitable, we can take no view on whether the Council’s section 19 duty is engaged. The matters are not separable.
17. The EHC plan the Council has issued names the school. Mrs X contends that, as the school cannot meet her daughter’s needs, the Council is failing to secure the delivery of the provision set out in the EHC plan. If Mrs X believes the school named in the EHC plan is not appropriate, her recourse is to appeal to the Tribunal and it would be reasonable for her to do so. We will not intervene.

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Final decision

18. We will not investigate Mrs X’s complaint because it is not separable from matters about which she appealed, or could have appealed, to the Tribunal.

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Investigator's decision on behalf of the Ombudsman