Summary: We cannot investigate this complaint about educational provision and placements because it was reasonable for Miss X to use her right to appeal to the Tribunal. The law does not allow us to investigate this complaint.

The complaint

1. Miss X complains the Council:
• Consulted with schools that were unsuitable for her son;
• Ignored professional advice;
• Arranged unsuitable alternative provision that resulted in physical injury to her son; and
• Failed to provide speech therapy to her son.
2. Miss X says the failings have caused avoidable distress, a loss of education and therapy, regression, trauma and physical injury to her child. Miss X says she wants a specialist setting for her son that can meet his needs and keep him safe.

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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.
6. 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…”.
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. We cannot investigate Miss X’s complaint because the law does not allow us to.
11. 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). The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.
12. 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 the special educational provision, or alternative educational provision.
13. In this case, Miss X disagrees with the school named in her son’s Education, Health and Care (EHC) Plan and she complains about the alternative provision the Council arranged. These matters are related and it is reasonable for Miss X to appeal the placement (Section I) of the EHC Plan to the Tribunal. Therefore, the law does not allow us to investigate Miss X’s complaint.
14. Miss X would like a specialist school for her son. This is not an outcome the Ombudsman can achieve. The Tribunal can make amendments to an EHC Plan and it is reasonable for Miss X to use this right of appeal if she remains unhappy with the placement named in her son’s EHC Plan.

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Final decision

15. We cannot investigate Miss X’s complaint because it was reasonable for her to use her right of appeal to the Tribunal and the law says we cannot investigate these matters.

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Investigator's decision on behalf of the Ombudsman