Summary: We cannot investigate Ms X’s complaint about the school named in her child’s Education, Health and Care Plan. Ms X has used her right of appeal to a tribunal.

The complaint

1. Ms X complains about the educational placement named in her child, Y’s Education, Health and Care (EHC) Plan. She says the school named cannot meet Y’s needs and the Council has refused to provide alternative educational provision. She wants the Council to provide Y with a suitable education and provide a financial remedy for lost income and the distress caused.

Back to top

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. 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 is not attending their named school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent’s disagreement about the educational placement in the EHC Plan, we cannot investigate a lack of alternative educational provision.

Back to top

How I considered this complaint

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

Back to top

My assessment

9. We cannot investigate this complaint about the school named in Y’s EHC Plan because Ms X has appealed to the Tribunal about this matter.
10. We also cannot investigate the Council’s decision that it will not provide alternative educational provision for Y. Y’s non-attendance at the named school is linked to, or is a consequence of Ms Y’s disagreement with the named school, so we cannot investigate a complaint about this.

Back to top

Final decision

11. We cannot investigate Ms X’s complaint because she has used her right of appeal to the SEND Tribunal about the educational placement named in Y’s EHC Plan.

Back to top

Investigator's decision on behalf of the Ombudsman