Summary: We cannot investigate this complaint that the Council has failed to provide the complainant’s daughter with suitable alternative educational provision and has failed to secure the delivery of the provision set out in her Education Health and Care plan. This is because the complainant has used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability, and this places the complaint outside our jurisdiction.

The complaint

1. The complainant, Mrs X, complains that the Council has failed to provide her daughter with suitable educational provision while she has been unable to attend school and has failed to secure the delivery of the provision set out in her Education Health and Care (EHC) plan.

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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 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…”.
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). 
7.  

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How I considered this complaint

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

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My assessment

10. Mrs X’s daughter has special educational needs and an EHC plan. Mrs X says her daughter cannot attend school and that the Council’s duty to make suitable alternative provision under Section 19 of the Education Act 1996 is engaged. She says the provision the Council has offered to provide cannot be accessed and it therefore not suitable.
11. Mrs X further complains that the Council is failing to secure the provision set out in her daughter’s EHC plan. She says that the Council is offering to make the provision at the school which her daughter cannot attend.
12. The Ombudsman cannot investigate Mrs X’s complaint. The evidence she has provided shows that she has used her right to appeal to the Tribunal against the content of the EHC plan. Whether the school is suitable for her daughter and can make appropriate provision is a matter which the Tribunal can consider.
13. 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).
14. This means that if a pupil not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, 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.
15. The period we cannot investigate starts from the date the EHC plan is issued and ends when the Tribunal process is concluded. During this period, we cannot investigate the provision, or lack of it, made for the pupil, and can take no view on whether the Section 19 duty is engaged. That being the case, we cannot investigate Mrs X’s complaint.

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Final decision

16. We cannot investigate Mrs X’s complaint. Her appeal to the Tribunal places the substantive matters outside our jurisdiction.

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Investigator's decision on behalf of the Ombudsman