Summary: We cannot investigate Mrs X’s complaint about the Council’s failure to secure educational provision for her child because Mrs X has used her right to appeal to a Tribunal and the law says we cannot investigate. We will not investigate Mrs X’s complaint about her child’s education prior to April 2025 because an investigation by the Ombudsman is unlikely to achieve anything more for her.

The complaint

1. Mrs X complains the Council failed to provide her child with a suitable education and the provision in her Education, Health and Care (EHC) Plan when she stopped attending school in 2024.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. 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:

• there is not enough evidence of fault to justify investigating, 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), section 34(B))

4. 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)
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. 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

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. Mrs X says the Council has not provided a suitable education to her child when they stopped attending school in November 2024. The Council upheld Mrs X’s complaint and said that although the school could meet the child’s needs, there were elements of provision between February 2025 and May 2025 that were not provided when the child was not attending school. The Council provided Mrs X a remedy payment for the loss of education of £900.
10. We will not consider Mrs X’s complaint about matters prior to April 2025 because an investigation could not achieve anything more for Mrs X.
11. We cannot investigate Mrs X’s complaint about her child’s education from April 2025. This is because she has used her right to appeal the content of her child’s EHC Plan to the Tribunal.
12. Mrs X says her complaint about alternative provision is entirely separate from her appeal regarding the placement. However, 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)
13. 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.

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Final decision

14. We cannot investigate Mrs X’s complaint because she has used her right to appeal to a Tribunal and the law says we cannot investigate and there is nothing further an investigation would achieve.

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Investigator's decision on behalf of the Ombudsman