Summary: We will not investigate this complaint about the Council’s actions after it issued a new Education, Health and Care plan naming a new school. This is because the complainant has used her right of appeal to the tribunal. We cannot investigate complaints about what happens in school and there is insufficient injustice to warrant investigation into the remaining complaints.

The complaint

1. Miss X complained the Council had:
• Failed to provide her with free school meal vouchers,
• Failed to keep her son safe at school or act on her safeguarding referrals,
• Failed to ensure the school set a start date, arranged a transition plan and provided the provision set out in C’s Education, Health and Care plan,
• Withdrawn alternative provision before C had a school place,
• Failed to ensure it named a school which could meet C’s needs,
• Not arranged alternative provision when her son stopped attending school, and
• Refused to accept her complaints.
2. She says this caused her son to miss a year of education. She says she has been out of work to look after her son, and the lack of support has caused her stress and exhaustion.

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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. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
5. 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)
6. 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.
7. 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 and also “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…”.
8. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide any injustice is not significant enough to justify our involvement (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

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

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My assessment

11. The Council issued C with a new Education, Health and Care (EHC) plan in November 2024 and he began attending the school named in December. Shortly after starting Miss X decided the school was not suitable and she chose not to send him. She also appealed to the tribunal about the EHC plan shortly after.
12. We will not investigate Miss X’s complaints about free school meal vouchers, transition plans and her son’s safety and the safeguarding referrals around this. These complaints relate to actions the school are responsible for, and we are prevented from investigating these concerns.
13. We will also not investigate Miss X’s complaints about the suitability of the school or its failure to arrange alternative provision after she decided the school was not suitable. Miss X appealed the EHC plan issued. The law is clear that when a parent has appealed to a tribunal, the matter appealed, or anything closely linked, are outside our jurisdiction.
14. We will not investigate the remaining complaints, about the Council stopping alternative provision before C started school, its failure to ensure the EHC provision was in place or poor complaints handling. Given the short length of time this happened over, there is insufficient injustice to warrant further investigation.

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Final decision

15. We will not investigate Miss X’s complaint because she has used her right of appeal, we cannot investigate complaints about what happens in school and there is insufficient injustice for the remaining complaints.

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Investigator's decision on behalf of the Ombudsman