Summary: We cannot investigate Mrs X's complaint the Council did not name a school, or suitably consult with schools, when it issued an Education, Health, and Care Plan. Nor can we investigate her complaint the Council delayed providing alternative provision for her son when they were not at school. Mrs X has appealed the Council’s decision to the SEND Tribunal and her complaints are not separable from her appeal about the content of an Education, Health, and Care plan. Therefore, the law says we cannot investigate.

The complaint

1. Mrs X complained the Council did not name a suitable school for her son (Y), when it issued a final Education, Health, and Care (EHC) Plan and then did not do enough to provide him with education when he was not attending school.
2. Mrs X also complained the Council took too long to respond to her complaints about these issues.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
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 Mrs X and the Council.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. In September 2023, the Council issued a final EHC Plan for Y. The Council did not name a school. Mrs X lodged an appeal with the SEND Tribunal about the Council’s decision at section I (the placement) and section F (special education provision).
10. Mrs X complained the Council did not name a suitable school and did not consult with, or delayed, consulting with schools, she believed would have been suitable. Because these matters are not separable from Mrs X’s appeal, the law says we cannot look at this.
11. Nor can we investigate Mrs X’s complaint the Council should have provided alternative provision for Y. The courts have established that if someone has appealed to the SEND Tribunal, the law says we cannot investigate any matter which was part of, or was connected to, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
12. This means that if a child or young person is not attending school, and the reason for non-attendance is linked to a parent’s disagreement about section I (the placement), we cannot investigate a lack of alternative educational provision.

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Final decision

13. We cannot investigate Mrs X’s complaint because she has appealed the Council’s decision.

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Investigator's decision on behalf of the Ombudsman