Summary: Mrs X complained about the Council’s failure to provide her child with a school placement and its failure to put in place special educational provision for her child. We cannot investigate Mrs X’s complaints as the matters complained about were either part of Mrs X’s appeal to the Special Educational Needs and Disabilities Tribunal or are too closely linked to the appeal.

The complaint

1. Mrs X complains that the Council:
• has not put in place the special educational provision in her child’s Education, Health and Care (EHC) Plan issued in January 2025.
• has not provided her child with a specialist school placement and has used an inappropriate consultation process.
2. Mrs X says the Council’s failings have impacted her child and they have fallen behind their peers academically. Mrs X also said she has suffered distress and frustration and having her child at home has impacted her employment.

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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. In determining whether to initiate, continue or discontinue an investigation we act in accordance with our own discretion, subject to the provisions of sections 24A, 26 and 26D of the Local Government Act 1974. (Local Government Act 1974, section 24A(6), as amended)
5. We cannot investigate a complaint if someone has appealed to a tribunal. (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. 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. 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.
9. 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

10. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
11. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Law and guidance

12. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the SEND Tribunal in this decision statement.
13. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued. (Children and Families Act 2014 Section 51(2))

What happened

14. In November 2024, Mrs X’s child, Y stopped attending school. At this time Y was on the school roll of a mainstream school.
15. In December 2024, the Council agreed Y needed a specialist school placement. The Council issued a final EHC Plan for Y. The Council did not have a school placement for Y so just listed the school type in the EHC Plan which was a specialist school.
16. After issuing Y’s EHC Plan in January 2025, the Council put in place 4.5 hours of tutoring for Y per week as they did not have a school placement.
17. In December 2024 and January 2025, the Council said it consulted with three specialist schools who said they could not offer Y a placement. Mrs X said the Council told her Y’s case was heard at a Panel and the schools responded to the Panel and said they could not offer Y a place.
18. Mrs X contacted an independent specialist school to see if they could offer Y a place. The independent specialist school told Mrs X they could offer Y a place to start in September 2025. Mrs X passed this onto the Council and asked it to contact this school.
19. In February 2024, the Council put Y’s case forward at a Panel again to consider whether the Council should look at independent specialist placements for Y. The Panel decided against this and said the Council should further explore a placement at one of the schools who had previously refused.
20. In March 2025, Ms X appealed to the SEND Tribunal. Mrs X appealed sections B, F and I of Y’s EHC Plan. This concerned the sections about Y’s special educational needs, Y’s special educational provision and the section listing the school placement. In relation to section I (the school placement), Mrs X’s appeal form said she wanted the independent specialist school as Y’s placement. Mrs X also listed her concerns about how the Council had looked for and consulted to find her child a school placement. In relation to section F (Y’s special educational provision), Mrs X’s appeal form said she wanted Pathological Demand Avoidance provision listed in the EHC Plan. She also said the provision in section F was not fully specified and quantified and needed further clarification.

Analysis

21. We generally would not investigate a complaint when the issues complained of are matters which could have been appealed to the SEND Tribunal. We have no discretion to investigate any issues which were part of Mrs X’s appeal. The courts have found we cannot investigate any matter closely linked to the matters under appeal.
22. Mrs X had the right to appeal Sections B, F and I of Y’s EHC Plan from January 2025, when the Council issued the plan. She lodged her appeal against Sections B, F and I in March 2025.

Not providing a school placement

23. Mrs X has appealed to the SEND Tribunal about section I in Y’s EHC Plan concerning their school placement. Mrs X has asked the SEND Tribunal to name a specific school for Y which is an independent specialist school.
24. It will be for the Tribunal to decide what school is suitable for Y to attend. As Mrs X has appealed this section of the EHC Plan, we cannot investigate her concerns around the school consultation process as they will overlap with the SEND Tribunal’s jurisdiction.

Not putting in place special educational provision

25. As explained above we would not normally investigate any issues which are closely linked to the matters in the appeal.
26. Mrs X considered that section F of Y’s EHC Plan was not sufficient. She wanted additional provision included to support Y’s Pathological Demand Avoidance and wanted the existing provision, which was included in the Plan, to be qualified and fully specified. Mrs X also said the provision in section F needed further clarification. Therefore it is not clear what the extent of the appeal is or exactly what Mrs X is asking for in section F. Because of this, looking at the Council’s failure to put in place the special educational provision in the EHC Plan would be too closely linked to the appeal issues. Our investigation would be at risk of interfering with the jurisdiction of the SEND Tribunal.

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Decision

27. I will not investigate this complaint as some matters complained about are either too closely linked to the appeal to the SEND Tribunal or could have been appealed. I cannot investigate the issues which have been appealed to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman