Summary: We have discontinued our investigation of this complaint about special educational need. This is because it concerns matters which we have addressed in previous decisions, which are subject to an ongoing appeal to the Tribunal, and/or which did not form part of a complaint to the Council.

The complaint

1. I will refer to the complainant as Ms L. Ms L’s complaint concerns the Council’s handling of special educational need matters for her daughter, to whom I will refer as C.
2. Ms L complains the Council:

• failed contractual obligations;
• did not use the correct assessments when compiling C’s education, health and care (EHC) plan;
• misled her into not making an appeal to the SEND Tribunal by saying it would arrange education other than at school (EOTAS), but then did not do so; and
• misled her into believing a complaint of discrimination would be addressed through a ‘discrimination tribunal’.

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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 Tribunal in this decision statement.
5. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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)
7. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)

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How I considered this complaint

8. I considered evidence provided by Ms L and the Council as well as relevant law, policy and guidance.
9. I also shared a draft copy of this decision with each party for their comments.

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What I found

10. C has a learning disability and is subject to an EHC plan. She is also subject to an interim care order (ICO) and the Council holds joint parental responsibility for her. There is an ongoing appeal to the SEND Tribunal, concerning the contents and placement set out in C’s EHC plan, and an ongoing application to the Family Court, concerning C’s living arrangements.
11. In July 2023 Ms L submitted a complaint to the Council covering a broad range of topics related to C’s education. The Council rejected this complaint, on the basis it had already addressed all the substantive issues the complaint raised in its responses to previous complaints.
12. In September 2024, Ms L approached the Ombudsman with the complaint described in paragraph 2.

Analysis

13. I will address each point of Ms L’s complaint in turn.

The Council failed contractual obligations

14. Ms L has not explained what she means by this, and there is nothing in her complaint to the Council of July 2023 which appears to relate to this point.
15. The law says the Ombudsman must allow a council a reasonable opportunity to address a complaint through its own procedures, before we accept it for investigation. As Ms L has not made a formal complaint to the Council about this it is premature for investigation by the Ombudsman.

The Council did not use the correct assessments when compiling C’s education, health and care (EHC) plan

16. We considered this point in a previous decision (24 007 849), in which we explained we would not accept it for investigation, because Ms L had a right of appeal which was reasonable for her to use. We do not reinvestigate matters we have previously decided and so this is not a valid complaint.
17. Even if this were not the case, the Council has now informed us that Ms L actually has used her right of appeal against the relevant sections of the EHC plan. This means any complaint about the same elements of the plan is entirely outside our jurisdiction, and we have no discretion to investigate it.

The Council misled Ms L into not making an appeal to the SEND Tribunal by saying it would arrange education other than at school (EOTAS), but then did not do so

18. There is no evidence Ms L has sought to make a complaint to the Council about this matter. Again, her complaint to the Council of July 2023 made no mention of it. It is therefore premature for investigation by the Ombudsman.
19. Even if Ms L had made a complaint about it, however, we would not be able to accept it for investigation. This is, again, because Ms L has an ongoing appeal to the SEND Tribunal, which includes the matter of C’s educational placement. Any dispute about whether the Council should have arranged EOTAS for C is inextricably linked to the question of her placement, and is therefore entirely outside our jurisdiction.

The Council misled her into believing a complaint of discrimination would be addressed through a ‘discrimination tribunal’

20. I do not know what Ms L means by a ‘discrimination tribunal’, but, again, there is no evidence Ms L has sought to make this complaint to the Council.
21. Even if she had, we have no power to investigate discrimination, as it as a legal matter. Any complaint of discrimination should be made to the courts.

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Decision

22. I have discontinued my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman