Summary: We will not investigate this complaint about the Council not arranging educational provision for Miss X’s child. A legal judgement prevents us investigating matters that are not separable from matters subject to the Special Educational Needs and Disability Tribunal.

The complaint

1. Mrs X said the Council had ignored her child’s education Health and Care (EHC) Plan and failed to provide a school place or an alternative for almost a year. She said it had ignored her and failed to deal with her complaint properly.

Back to top

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. The law says we cannot normally investigate a complaint when someone can appeal 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 appeal. (Local Government Act 1974, section 26(6)(a), as amended)
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 SEND Tribunal in this decision statement.
5. The courts have held that where someone has appealed to the SEND Tribunal, we have no authority to consider what educational provision should be made for the child concerned. (Local Government Act 1974, section 26(6)(a), R v the Commissioner for Local Administration ex parte PH, 1999);  R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407
6. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

Back to top

How I considered this complaint

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

Back to top

My assessment

9. The Council issued an Education Health and Care (EHC) Plan for Miss X’s child that contained no educational setting. She appealed against the EHC Plan. The SEND Tribunal that heard her appeal named an educational setting.
10. The Council accepts that it failed to make educational provision for Mrs X’s child during the period she was waiting for the Tribunal. If offered her a sum in recognition of this. Mrs X says the Council has failed to recognise the degree of harm caused to her child and her family.
11. We are restricted by the legal judgement referred to in paragraph 4 above and cannot investigate the matters complained of. This is because the correct nature of any educational provision for the child was for the Tribunal to decide from the time when the Council issued the EHC Plan that Mrs X appealed against until the time the SEND Tribunal issued its ruling. This remains the case even though the Council has accepted it should have made alternative educational provision for the child. It remains the case even though the Council named no educational setting in the EHC Plan to which Miss X could have sent her child. None of the matters in Miss X’s complaint is separable from the matter of the correct educational provision for her child.
12. Miss X is entitled to complain to the Council about matters subsequent to the SEND Tribunal’s decision. She is welcome to return to us regarding those matters if she has first given the Council the opportunity to first consider a complaint via its complaint process.

Back to top

Final decision

13. We will not investigate Miss X’s complaint because a legal judgement means we have no legal authority to do so.

Back to top

Investigator's decision on behalf of the Ombudsman