Summary: We cannot investigate this complaint about the Council’s failure to provide alternative educational provision. The matters complained about are too closely linked to tribunal proceedings and therefore the law says we cannot investigate. For the period we could investigate, there is no worthwhile outcome achievable by our involvement and therefore we will not investigate.

The complaint

1. Mr X complained about the Council failing to arrange a school placement for his child (Y) and failure to provide alternative educational provision.
2. Mr X said the matters caused distress and uncertainty.

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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.
6. 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 no worthwhile outcome achievable by our investigation. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

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

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My assessment

9. Y is a child who has an Education Health and Care (EHC) Plan.
10. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable.
11. From September 2024, Y was out of education because their previous placement ended. The Council did not arrange a school place or alternative educational provision, including that outlined in section F of Y’s EHC Plan.
12. In October 2024, following an annual review of Y’s EHC Plan, Mr X received the right to appeal to the Tribunal about the content of the EHC Plan. Mr X exercised this right by appealing, specifically about the setting named in section I of Y’s EHC Plan.
13. 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.
14. 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.
15. We could investigate the lack of provision provided from September 2024, until Mr X received the appeal right. However, the Council said it would pay Mr X £2000 to remedy any injustice caused by the loss of provision between September 2024 and December 2024.
16. This period the Council has offered to remedy is beyond that which we could investigate, and the remedy offered is in line with our Guidance on Remedies. Therefore, there is no worthwhile outcome achievable by us investigating.

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Final decision

17. We cannot investigate Mr X’s complaint because the matters complained about are too closely linked to tribunal proceedings and therefore the law says we cannot investigate. There is no worthwhile outcome achievable by our involvement for the period we could investigate and therefore we will not investigate.

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Investigator's decision on behalf of the Ombudsman