Summary: We will not investigate Mr X’s complaint that the Council failed to provide suitable education provision for his daughter or the special educational provision detailed in her Education Health and Care Plan. This is because these matters overlap with a tribunal appeal.

The complaint

1. Mr X complains that the Council has failed to provide suitable education provision for his daughter, Miss Z, and has failed to provide the Special Educational Needs (SEN) detailed in her Education Health and Care (EHC) Plan.

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The Ombudsman’s role and powers

2. 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))
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. The First-tier Tribunal (Special Educational Needs and Disability – SEND) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.

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How I considered this complaint

5. I considered information provided by the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. The Council issued an EHC Plan for Miss Z in September 2024. The EHC Plan named a college placement and detailed the SEN provision that school staff would need to provide to support Miss Z.
8. In February, the Council made the decision to maintain the EHC Plan. Mr X has appealed this decision to the SEND Tribunal and wants the education placement named in EHC Plan to be changed.
9. I cannot investigate the contents of the EHC Plan, including the placement named. This is because Mr X has used his right of appeal to the SEND Tribunal.
10. I cannot investigate Mr X’s complaint about the suitability of the placement named in Miss Z’s EHC Plan because he has used his right of appeal to the SEND Tribunal about this matter. Any dispute over education provision in place following the Council’s decision to maintain the EHC Plan is linked to Mr X’s appeal that the setting could not meet Miss Z’s needs.
11. The SEN provision detailed in Section F of Miss Z’s EHC Plan was recommended for delivery at college by teaching staff. It would therefore be difficult, if not impossible, to deliver that provision outside the college setting. For this reason I also consider that the delivery of the SEN provision is also not separable from the appeal to the SEND Tribunal.
12. Mr X says his daughter, Miss Z, is unable to attend college for medical reasons and that the Council should provide alternative provision. The Council’s duty to arrange suitable full-time education for children who cannot attend school due to, for example, illness or other reasons, only applies to children of compulsory school age. Miss Z is over the compulsory school age meaning the Council’s duty does not apply here. For this reason, there is not enough evidence of fault by the Council to justify investigating.

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Final decision

13. We will not investigate Mr X’s complaint because the issues raised are not separable from his appeal to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman