Summary: We cannot investigate Miss X’s complaint about the education provided to her child because she has appealed to the Tribunal.

The complaint

1. Miss X complains the Council has failed to secure suitable provision for her child when he was unable to attend the mainstream setting named by the Council in her child’s Education, Health and Care (EHC) Plan. Miss X would like mentoring provision to be included in Section F of the EHC Plan, Education Other Than At School (EOTAS) to be named in Section I and for specific provision to be arranged in the interim.

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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. 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)
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. 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). 

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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. We will not investigate Miss X’s complaint.
9. Miss X has complained about the provision in the EHC plan, the Council’s failure to secure specific provision and the unsuitability of the setting named in Section I of the Plan. The Council refused parental preference and named a mainstream school in the EHC Plan. Miss X says her child cannot attend a mainstream setting. Miss X has exercised her right to appeal to the SEND Tribunal and has requested EOTAS (Education Other Than At School) and for mentoring provision to be arranged in the interim.
10. 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)
11. 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.
12. We simply have no jurisdiction to consider these issues and so we will not consider Miss X’s complaint.

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Final decision

13. We cannot investigate Miss X’s complaint because she has appealed to the Tribunal.

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Investigator's decision on behalf of the Ombudsman