Summary: We cannot investigate Mr X’s complaint about the Council’s handling of his child’s education. This is because he has used his right of appeal to the Tribunal.

The complaint

1. Mr X complains the Council has failed to meet his son Y’s educational needs by not securing a suitable school placement. He says Y’s current school has said it cannot meet his needs. He says the Council has refused his preferred school because of cost and is waiting on a Special Educational Needs and Disability (SEND) Tribunal decision to resolve the matter instead of addressing it promptly
2. As a result, Y remains in an unsuitable setting, which has caused him distress and frustration. Mr X believes the Council is neglecting its duty of care and failing to take his concerns seriously.
3. Mr X asks the Council to secure an appropriate school placement without delay or if no suitable local placement is available, he wants the Council to approve his preferred school.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. The courts have established that if someone has appealed to the Tribunal, then 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).

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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. Mr X complained to the Council about its failure to secure a suitable school placement for his son Y. He argued the Council had not acted despite the current school saying it could not meet Y’s needs and says it has unfairly refused his preferred independent school on cost grounds.
11. The Council responded and advised that it is continuing to seek a placement but must await the Tribunal’s decision before confirming one. It said it considers parental preference, Y’s needs, and cost when making decisions, and does not view the preferred school as an efficient use of resources. It also confirmed that Y remains in his current school’s SEND unit with support in place.
12. The law is clear in that when a parent has used their right of appeal to the SEND tribunal, we have no powers to consider the matter appealed or anything closely linked. This includes the Council’s refusal to name the preferred school, how it made that decision, and any impact on Y’s education arising from the placement. This exclusion applies from when the appeal rights were available and until the appeal was settled – either by the Tribunal deciding the case or a consent order.
13. We cannot investigate Mr X’s complaint because he has used his right of appeal to the Tribunal.

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Final decision

14. We cannot investigate Mr X’s complaint because it falls outside our jurisdiction as he has exercised his right of appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman