Summary: We cannot investigate Mrs X’s complaint about matters relating to her child’s Education Health and Care plan and that the Council failed to arrange suitable full-time education for her child. This is because Mrs X has used her right of appeal to the SEND Tribunal.

The complaint

1. Mrs X complains that the Council failed to arrange alternative education provision for her child from October 2024 and about the actions of the Council during her appeal to a tribunal. Mrs X says the Council also provided inaccurate information about her child’s needs to a Member of Parliament (MP).

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The Ombudsman’s role and powers

2. 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))
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 – SEND) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
5. We cannot investigate the council’s conduct during an appeal. This includes anything a complainant could have raised with the Tribunal at any stage of the appeal, or which the Tribunal has considered on its own initiative, or which could have been a part of the Tribunal’s deliberations in resolving the appeal (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)  

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How I considered this complaint

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

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My assessment

8. 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.
9. 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 educational placement in the Education Health and Care (EHC) plan, we cannot investigate a lack of alternative educational provision.
10. Mrs X’s appeal was about the EHC plan not meeting her child’s needs and the suitability of the school named in the EHC plan. Her child’s non-attendance at school was related to its suitability and his unmet needs and so these matters are not separable from Mrs X’s appeal.
11. I also cannot investigate a complaint about the actions of the Council during the appeal to the SEND Tribunal. This is because doing so 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.
12. Finally, I will not investigate Mrs X’s complaint that misleading information was sent to her MP about her child’s needs. This is because she has not demonstrated that this has caused her or her child a significant injustice.

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Final decision

13. We will not investigate Mrs X’s complaint because she has used her right of appeal to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman