Summary: We cannot investigate this complaint about the Council’s failure to provide suitable education for the complainant’s child when they were out of school. The complainant has used their right of appeal to the Tribunal, and we cannot investigate matters that closely relate to an appeal.

The complaint

1. Miss X complains the Council failed to provide alternative provision to her child who was out of school for several months. Miss X says this negatively impacted her child’s mental health and wants the Council to provide alternative provision.

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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 on 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. It also prevents us from investigating “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)
7. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we are satisfied with the actions an organisation has taken or proposes to take. (Local Government Act 1974, section 24A(7), as amended)

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How I considered this complaint

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

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My assessment

10. Miss X’s child, Y, has an Education, Health and Care (EHC) Plan. Miss X says Y stopped attending the school named within the plan because it was not suitable to meet Y’s needs. Miss X found another school for Y and appealed to the Tribunal to change the school named in the plan. Miss X complains the Council has failed to provide alternative provision for Y, whilst the result of the tribunal is pending.
11. We will not investigate Miss X’s complaint about the Council’s failure to arrange alternative provision. It is for the tribunal to decide whether the school named in the plan could meet Y’s needs. Y’s absence from school is linked to whether the school can meet their needs. So this complaint is too closely related to the issues Miss X has appealed and we cannot investigate it.
12. In any case, the Council has offered Miss X a remedy for the time it was aware Y was out of school awaiting the results of the Tribunal. The offered remedy is in line with our guidelines. This would remove the need for us to investigate, even if the restrictions did not apply.

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Final decision

13. We cannot investigate Miss X’s complaint because she has used her right of appeal to the tribunal about the educational placement named in the EHC plan.

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Investigator's decision on behalf of the Ombudsman