Summary: We cannot investigate Ms X’s complaint about the education provided to her child since November 2024 because she has appealed to the SEND Tribunal. We will also not investigate her complaint about poor communication. We cannot investigate the actions of the school. The Council has apologised to her for times when it did not communicate effectively and told her how it is working to improve its service. It is unlikely an investigation would lead to a different outcome.

The complaint

1. Ms X complains the Council has failed to provide her child, Y, with suitable education since November 2024 and about poor communication from the Council and her child’s named school. She says her child has missed out on alternative educational provision and the lack of communication has caused distress and affected her mental health. She wants the Council to improve its service and compensate her for the distress caused.

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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 most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
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 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)
6. 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 Education, Health and Care (EHC) Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
7. 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 further investigation would not lead to a different outcome.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

8. 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

9. I considered information provided by the complainant and the Council.
10. I considered the Ombudsman’s Assessment Code.

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My assessment

11. We cannot investigate the education provided to Y since November 2024. Where there is a disagreement about the educational placement and a parent has used their right of appeal to the Tribunal, the courts have confirmed we cannot investigate complaints about a lack of alternative educational provision. Ms X has appealed to the Tribunal about the placement named in Y’s EHC Plan so we cannot investigate.
12. In the Council’s complaint responses, it acknowledged there had been episodes of poor communication and it had not notified Ms X when her caseworker left the Council. It apologised to Ms X for this. It set out what action it would take to improve its service. In its final complaint response, it acknowledged that communication was not as frequent as Ms X would like, but said it was satisfied her caseworker had appropriately responded to her communications.
13. We will not investigate this. The Council has upheld her complaint about poor communication, apologised for any distress caused and set out what action it is taking to improve its service. Although I accept this is likely to have caused Ms X frustration, it is unlikely an investigation would achieve anything more or lead to a significantly different outcome.
14. We cannot investigate the actions of the school so cannot investigate how the school has communicated with Ms X.

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Final decision

15. We will not investigate Ms X’s complaint because we cannot investigate the education provided to Y or the actions of the school and it is unlikely an investigation would lead to a different outcome.

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Investigator's decision on behalf of the Ombudsman