• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• My assessment
• Final decision

The Ombudsman's final decision:

Summary: We cannot investigate this complaint about the Council failing to make educational provision for Ms X’s child. Where a parent appeals against an Education Health and Care Plan, a court judgement prevents us considering what educational provision is made for the child from the date of issue until the date of the Tribunal decision.

The complaint

1. Ms X said the Council failed to make any educational provision for her child after May 2023, even though she told it she could no longer educate her child at home. She said she also incurred costs of almost £2500 in paying for specialist provision.

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 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)
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. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal…such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.

Back to top

How I considered this complaint

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

Back to top

My assessment

8. The complaint correspondence indicates the Council issued an Education Health and Care (EHC) Plan for Ms X’s child in April 2023. It named elective home education (EHE), to be provided by Ms X. But Ms X told the Council in May 2023 that she could not meet her child’s special educational needs (SEN), and that she wanted a school or similar placement. She appealed against the EHC Plan. The SEND Tribunal was due in June 2024.
9. Given Ms X had told the Council she could not educate her child, I would normally have expected the Council to carry out a review of the provision and to have considered what alternative provision was needed. After all, it was obvious that the provision specified would not be available to the child without an alternative offer, as Ms X could not be expected to home educate her child.
10. However, the courts have ruled that we have no legal power to consider the matter of educational provision for a child where a parent appeals against a final EHC Plan issued by a council. Therefore, we are unable to investigate the provision made or not made for Ms X’s child between April 2023 and June 2024.

Back to top

Final decision

11. We cannot investigate Ms X’s complaint because a legal ruling prevents us from doing so.

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page