Summary: We cannot investigate most Miss X’s complaint about the Council’s failure to secure the content of her child’s Education, Health and Care Plan or its failure to organise alternative provision for her child because Miss X used her right to appeal to a tribunal, and the law says we cannot investigate.

The complaint

1. Miss X complained the Council failed to:
1. secure the content of her child, Y’s, Education, Health and Care (EHC) Plan; and
2. organise alternative provision under its section 19 duty for Y when they were unable to attend the school named in their EHC Plan; and
3. respond to her complaints in line with its policy.
2. Miss X said the matter caused her distress and frustration.

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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 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. 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. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect 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 an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

7. I considered information provided by the complainant.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

Delivery of Y’s EHC Plan (section 42) and securing alternative provision (section 19)

9. We cannot investigate these complaints. This is because Miss X used her right to appeal the content of Y’s EHC Plan to the SEND Tribunal.
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. Miss X decided the named school in section I of Y’s EHC Plan was not suitable. The reason Y did not receive the content of their EHC Plan is therefore too closely related to the matter appealed to the Tribunal. Because the Tribunal will now determine the most suitable placement for Y, we cannot investigate.
13. Even if we could investigate, we would not exercise discretion to do so because the matter appealed is too closely related to the reason Y did not receive the content of their EHC Plan.

Complaint handling

14. It is not a good use of public resources to investigate complaints about complaint procedures if we decide not to investigate the substantive issue. Consequently, we will not investigate this complaint because the tests in our Assessment Code are not met.

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Final decision

15. We cannot investigate most Miss X’s complaint because she used her right to appeal to a tribunal, and the law says we cannot investigate. We will not investigate the remainder because the tests in our Assessment Code are not met.

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Investigator's decision on behalf of the Ombudsman