Summary: We cannot investigate this complaint that the Council has failed to ensure the complainant’s son has access to appropriate educational provision. The complainant has used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) and this places the complaint outside the Ombudsman’s jurisdiction by law.

The complaint

1. The complainant, Mrs X, complains that the Council has failed to ensure that her son has access to appropriate education.

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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 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) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.

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How I considered this complaint

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

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My assessment

7. Mrs X’s son has special educational needs and an Education Health and Care (EHC) Plan. She complains that the Council has failed to secure him a place at a specialist school which can meet his needs.
8. Mrs X’s son was attending a mainstream school. She says he was permanently excluded from the school, and that the part time alternative provision put in place for him is insufficient.
9. Mrs X has requested a specialist placement for her son and complains that the Council has not named an appropriate placement in his EHC Plan. She has used her right to appeal to the SEND Tribunal.
10. Although Mrs X claims her son was permanently excluded from his mainstream school, the correspondence she has provided shows that he remained on roll at the point at which she complained to the Ombudsman in April 2024. It further shows that the school is named on the EHC Plan.
11. Whether the current school is appropriate for Mrs X’s son is not a matter for the Ombudsman. The fact that it is named on the EHC Plan gave Mrs X the right to appeal to the SEND Tribunal and she has used that right. By law, this places the matter outside the Ombudsman’s jurisdiction and we cannot intervene. There is no discretion available to us.
12. 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. This means we have no power to investigate whether the provision currently available to Mrs X’s son is appropriate.

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Final decision

14. We cannot investigate Mrs X’s complaint because she has used her right to appeal to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman