Summary: We cannot investigate Miss X’s complaint that the Council failed to provide education to her child, Y, or the content of Y’s Education, Health and Care Plan to them between April 2023 and July 2024 because Miss X appealed to a tribunal, and the law says we cannot investigate.

The complaint

1. Miss X complained the Council failed to:
1. provide alternative education to her child, Y, when they became too unwell to attend school between April 2023 and July 2024; and
2. deliver the content of Y’s Education, Health and Care (EHC) Plan to them between April 2023 and July 2024.
2. Miss X said the matter caused her frustration and distress.

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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.

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How I considered this complaint

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

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My assessment

Background

8. In March 2023 the Council made a final EHC Plan for Y naming a mainstream school. Miss X appealed the content of the EHC Plan to the Tribunal, including the named school in section I. In April 2023 Y stopped attending their named school in section I.
9. In July 2024 the Tribunal made a final order instructing the Council to amend Y’s EHC Plan.

Analysis

10. We cannot investigate this complaint. 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)
11. 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.
12. The reason Y did not receive the content of their EHC Plan is too closely related to the matter appealed to the Tribunal. Therefore, we cannot investigate.

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Final decision

13. We cannot investigate Miss X’s complaint because she appealed to a tribunal and the law says we cannot investigate.

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Investigator's decision on behalf of the Ombudsman