Summary: We cannot investigate this complaint that the Council has failed to make educational provision for the complainant’s daughter and failed to properly identify and address her special educational needs. The complainant has used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) and the Courts have decided that the Ombudsman cannot intervene where the right to appeal has been used.

The complaint

1. The complainant, Mrs X, complains that the Council has failed to make educational provision for her daughter, and failed to identify and address her special educational needs.

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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. 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) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
5. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal…such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.
6. 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

7. I considered information provided by the complainant.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. Mrs X’s daughter has special educational needs and an Education Health and Care (EHC) plan. The evidence shows that the EHC plan issued in 2022 named a mainstream school. Mrs X says the school is unable to meet her daughter’s needs and she has never attended it.
10. The content of the EHC plan was the subject of an appeal to the Tribunal, which decided in 2023 that the school was appropriate. Despite this, Mrs X says the Council provided some education at home. She says this was withdrawn from March 2024, when the Council reviewed the EHC plan and decided that it should remain unchanged.
11. Mrs X’s complaint relates to what she regards as the Council’s failure to secure provision for her daughter between March 2024 and January 2025. She complains that, from the point at which it withdrew tuition, the Council failed to discharge its duties to secure alternative and special educational provision under Section 19 of the Education Act 1996 and Section 42 of the Children and Families Act 2014. The Council contends that it has secured special educational provision and that the Section 19 duty is not engaged as appropriate provision has been available to Mrs X’s daughter throughout the period at the school named in the EHC plan.
12. Mrs X used her right to appeal to the Tribunal. She says the Council has failed to obtain appropriate reports, so she has been compelled to do so privately. She believes the Council should reimburse the costs she incurred. The Council has consistently said that it will not do so.
13. The Ombudsman cannot investigate Miss X’s complaint. The matter turns on whether the school named in the EHC plan was capable of delivering appropriate education for her daughter. That is not a matter on which we can express a view. Miss X’s recourse was to use her right to appeal to the Tribunal. The fact that she did so means that, by law, we cannot intervene.
14. This is because 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 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, 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. That is the case here.
15. This restriction also applies to costs incurred in obtaining private reports relating to Mrs X’s daughter’s special educational needs as the subject of, and necessity for, such reports is bound up with matters which could be considered by the Tribunal. There is no discretion available to the Ombudsman.

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Final decision

16. We cannot investigate Mrs X’s complaint because she has used her right to appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman