Summary: We cannot investigate this complaint about the Council’s handling of Mrs X’s son’s educational and special educational needs. This is because the issues she has raised are too closely related to, or a consequence of, decisions on her son’s Education, Health and Care Plan and Mrs X has used her right of appeal to challenge the content of the Plan at both the First-tier and Upper Tribunals.

The complaint

1. Mrs X complains about the Council’s handling of her son Y’s special educational needs. Her complaints include:
• The Council failed to provide Y with an education during the 2023/24 and 2024/25 academic years;
• The Council failed to provide the special educational needs provision set out in Y’s Education, Health and Care (EHC) Plan, or his free school meals entitlement over the same period;
• The Council failed to respond to her appeal, attend the appeal hearing or file evidence as part of the appeal process;
• The Council victimised her and her son, failed to respond to emails from his preferred school and failed to act on the decision of the Upper Tribunal.

Back to top

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. We may decide to investigate if we consider it would be unreasonable to expect the person to use this right but cannot investigate if they have already used it. (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.

Back to top

How I considered this complaint

5. I considered information provided by Mrs X and the Ombudsman’s Assessment Code.

Back to top

My assessment

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.
8. While I have sympathy for Mrs X and Y the issues Mrs X has raised are too closely linked to the Council’s decisions on Y’s EHC Plan, against which Mrs X has exercised her right of appeal. The claimed loss of educational and special educational needs provision, and the lack of alternative provision provided by the Council, all stem from Mrs X’s disagreement with the EHC Plan and her decision not to send Y to the school provided by the Council, which it maintained was suitable and available for him throughout the period complained about.
9. We also cannot look at the way the Council reached its decision on the content of the EHC Plan or investigate the Council’s conduct as part of the appeals process; the Tribunals concerned considered the Council’s failures as part of the appeals process and excluded it from participation as a result. We cannot therefore look at the same issue now and I have seen nothing to show the Council victimised Mrs X or Y specifically as a result of her previous complaint to the Ombudsman.
10. Mrs X is also unhappy with the way the Council dealt with her complaint. But it is not a good use of public resources to look at the Council’s complaints handling if we are not going to look at the substantive issue complained about. We will not therefore investigate this issue separately.

Back to top

Final decision

11. We cannot investigate this complaint. This is because the issues Mrs X raises are too closely linked to the Council’s decision on the content of Y’s EHC Plan and Mrs X has used her right of appeal to the Tribunal to challenge this.

Back to top

Investigator's decision on behalf of the Ombudsman