Summary: We cannot investigate Mrs X’s complaint about the Council’s decision not to provide alternative provision for her child, Y, when Y became unable to attend school. We also cannot investigate how the Council delivered the content of Y’s Education, Health and Care Plan to them. This is because Mrs X used her right of appeal to a Tribunal, and the law says we cannot investigate.

The complaint

1. Mrs X complained the Council:
• failed to arrange alternative education for her child, Y, when they became too unwell to attend school; and
• failed to deliver the content of Y’s Education, Health and Care (EHC) Plan to them.
2. Mrs X says the matter caused her and Y distress and impacted on Y’s education.

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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. 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)
5. 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)
6. 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

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

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My assessment

9. In February 2024, Mrs X’s child’s (Y’s) attendance at school started to decline.
10. In mid-April 2024 the Council made a final EHC Plan for Y. The provision in the EHC Plan was set to be delivered at the named school.
11. Later that month, Mrs X wrote to the Council. She said Y was unable to attend school and asked the Council to arrange alternative provision under section 19 of the Education Act 1996. Mrs X explained Y’s anxiety was linked with their SEND and said since February 2024 Y’s attendance declined.
12. The Council responded several weeks later. It explained it had considered all the information available, but decided Y could be supported to receive education at their named school, and therefore it did not owe a section 19 duty to Y.
13. Mrs X then complained to the Council. She said she believed it owed the section 19 duty. She said Y’s attendance had declined significantly and that the Council had failed to secure the provision in Y’s EHC Plan.
14. Mrs X then sent an appeal to the SEND Tribunal regarding the content of Y’s EHC Plan including sections B (special educational needs), F (the provision), and I (the named school).
15. Mrs X spoke with the Council, and the Council agreed to conduct an early annual review to resolve the matters. Mrs X told the Council she would withdraw the Tribunal appeal and proceed with the early annual review.
16. The Council responded to Mrs X’s complaint. It told her it acknowledged she disagreed with its decision about whether it should provide alternative provision for Y but said it had considered all the information available and decided additional support in school was the first step, not alternative provision. It explained additional support it would provide and said Y could be supported to receive suitable education at school which would be informed by their EHC Plan.
17. The Council reviewed Y’s Plan and issued a new EHC Plan in mid-July 2024.

Analysis

18. We cannot investigate Mrs X’s complaints about how the Council decided whether to provide Y with alternative provision, or how it delivered the content of Y’s EHC Plan between mid-April 2024 and mid-July 2024.
19. This is because Mrs X used her right of appeal to the SEND Tribunal. The courts have confirmed that we cannot investigate any matter which is part of, or connected to, a Tribunal appeal. Mrs X’s disagreement with the content of Y’s EHC Plan included the named school.
20. Therefore, the reason Y did not attend school and did not receive the content of their EHC Plan is too closely linked to the matter Mrs X appealed, and the law says we cannot investigate. This is the case even though Mrs X asked the Tribunal not to proceed with the appeal.

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Final decision

21. We will not investigate Mrs X’s complaint because she used her right of appeal to a Tribunal, and the law says we cannot investigate.

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Investigator's decision on behalf of the Ombudsman