Summary: We cannot investigate this complaint about the Council’s failure to ensure a suitable education was secured because the complainant has used her right to appeal to the First-Tier Tribunal (Special Educational Needs and Disability).

The complaint

1. Mrs X complains the Council:
• Failed to secure a suitable education for her child,
• Named a school in her child’s education, health and care (EHC) Plan that cannot meet his needs;
• Only consulted two schools;
• Failed to challenge a school who refused to offer a place to her child; and
• Failed to provide her child with the provision outlined in Section F of his EHC Plan.

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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 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.
7. 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

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. Mrs X’s child is unable to attend the school named in his EHC Plan. Mrs X has appealed the setting named in Section I of her child’s EHC Plan to the Tribunal.
11. We cannot investigate this complaint about the school named in Mrs X’s child’s EHC Plan because she has appealed to the Tribunal about this matter.
12. We cannot investigate any matters linked to Mrs X’s appeal.
13. We also cannot investigate the provision arranged for the child because the non-attendance at the named school is linked to or is a consequence of Mrs X’s disagreement with the named school, so we cannot investigate a complaint about this.

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Final decision

14. We cannot investigate Mrs X’s complaint because she has used her right of appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman