Summary: Mrs X complained the Council failed to provide her daughter with an education and the special educational provision in her Education, Health and Care Plan. We have ended our investigation into Mrs X’s complaint because she used her right to appeal to the SEND Tribunal. Her complaint therefore falls outside our jurisdiction.

The complaint

1. Mrs X complained the Council failed to provide her daughter (Y) with an education and the special educational provision in her Education, Health and Care (EHC) Plan. She says this had a detrimental impact on Y and the family.

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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 or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), 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 from Mrs X and the Council.
6. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

7. Y has special educational needs and an EHC Plan. An EHC Plan sets out a child/young person’s needs and what arrangements should be made to meet them. 
8. The Council issued Y with an EHC Plan in January 2024. It named a school (School X) to deliver the provision in the Plan. Y does not attend School X.
9. Mrs X appealed to the SEND Tribunal about the description of Y’s special educational needs, the special educational provision in her EHC Plan and the Council’s decision to name School X as a suitable placement.

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Analysis

10. Mrs X says Y cannot attend School X because it is unsuitable for her and does not meet her needs. This is a matter she has appealed to the SEND Tribunal.
11. 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, 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). This means that if a child is not attending school and we decide the reason for non-attendance is linked to, or is a consequence of, a parent’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.
12. Mrs X’s complaint about the Council’s failure to provide Y with an education and the special educational provision in her EHC Plan is too closely linked to matters she has appealed to the SEND Tribunal about. So, the legal restriction applies. The period we cannot investigate starts from the date on which the Council issues the final EHC Plan and ends when the appeal process concludes.
13. 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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Final decision

14. I have ended my investigation into Mrs X’s complaint. This is because she used her right to appeal to the SEND Tribunal. Her complaint therefore falls outside our jurisdiction.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman