Summary: We cannot investigate this complaint about the reimbursement of school fees because the complainant has used her right to appeal the named placement to the Tribunal.

The complaint

1. Mrs X complains the Council refused to reimburse school fees she incurred by sending her child to a specialist school that was later named in her child’s Education, Health and Care (EHC) Plan.
2. Mrs X says she spent £24,411 to prevent her child missing education and the Council’s actions have caused her emotional distress. She requests reimbursement of £24,411, an apology and a review of procedures.

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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. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (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

8. Mrs X requested a specialist school to be named in her child’s EHC plan but the Council decided to name a mainstream setting. Mrs X appealed to the Tribunal and paid for her child to attend the specialist school while the appeal was ongoing. Mrs X says that two weeks before the appeal hearing the Council conceded and agreed to name the specialist school Mrs X requested.
9. As set out at Paragraph 4, once someone has used their right of appeal to challenge the contents of an EHC plan we cannot investigate any complaint about the same matter. This applies from the point the appeal rights were available to when the Tribunal issues its decision or when the appeal is withdrawn or conceded. We are also barred from looking at anything linked to the matter appealed. So, where a parent has appealed the school named in an EHC Plan, we cannot look at any alleged failings in the process leading to that decision. We also cannot look at any alleged loss of education or financial losses which are linked to a disagreement over the suitability of the school named.
10. We will not investigate this complaint because it is outside of our jurisdiction and we have no discretion on this matter.
11. For the same reason, we cannot consider any alleged loss of education caused by the suitability of the school setting. We appreciate this may be frustrating for Mrs X but due to the restrictions set out above there will be cases where there may be 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).
12. I acknowledge Mrs X’s frustration the Council conceded so close to the appeal hearing date but we cannot say it should have done this any sooner. Nor can we say it should have named the school Mrs X requested. These are matters for the Tribunal.

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Final decision

13. 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