Summary: We cannot investigate this complaint about educational provision and the suitability of a school because it was reasonable for the complainant to use her right to appeal to the First-Tier Tribunal (Special Educational Needs and Disability).

The complaint

1. Mrs X complains the Council placed her son, Y, in an unsuitable school and it failed to provide her with information about how it was funding the provision outlined in his Education, Health and Care (EHC) Plan and it failed to ensure he was receiving the correct provision.
2. Mrs X also complains the Council used her incorrect name when addressing her in an email and she requests an apology for this.

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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. 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, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

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

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My assessment

9. Y’s placement at School 1 broke down and the BINJ arranged for him to attend School 2. Mrs X says School 2 was unsuitable and she requested an urgent in-year move to School 3 and for the Council to amend Section I of Y’s EHC Plan to name School 3.
10. We cannot investigate Mrs X’s complaint because it was reasonable for her to challenge the Council’s decision about School 2 by using her right to appeal to the Tribunal.
11. We also cannot investigate Mrs X’s complaints relating to Y’s provision. 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. Mrs X disagreed with Y’s placement at School 2 and she complains about matters relating to Y’s provision as outlined in his EHC Plan. These matters are connected and it was reasonable for Mrs X to use her right to appeal. The law does not allow us to investigate in these circumstances.
13. Mrs X also complains of the Council addressing her incorrectly in an email. The Council has apologised for this in its response to her complaint. We will not investigate this because there is nothing further an investigation could add and the injustice is not significant enough to warrant an investigation.

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Final decision

14. We cannot investigate Mrs X’s complaint because it was reasonable for her to use her right to appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman