Summary: We will not investigate this complaint that the Council failed to arrange suitable education provision for a child. This is because the complainant has used their right of appeal to the SEND Tribunal, and this matter is not separable from that appeal.

The complaint

1. Mrs X complains that the Council failed to arrange alternative education provision for her son, Y, despite her asking it do so to from early 2023.

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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 SEND Tribunal in this decision statement.
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

6. I considered information provided by the complainant and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. I will not investigate Mrs X’s complaint that the Council failed to provide alternative education provision when she asked in early 2023. This is because this element of her complaint is made late and I see no reason why it could not have been made sooner.
9. The Council issued a final Education Health and Care (EHC) Plan for Y in July 2023. Mrs X felt the mainstream school named in the Plan could not meet Y’s needs. I cannot investigate the Council’s decision to name a mainstream school because Mrs X appealed to the SEND Tribunal, placing the matter outside of our jurisdiction.
10. I also cannot investigate Mrs X’s complaint about what education provision has been arranged while her appeal is waiting to be heard. The courts have established that if someone has lodged an appeal to the SEND Tribunal, we cannot investigate any matter that is closely linked to the matters under appeal. When issuing its final EHC Plan, the Council concluded that Mrs X’s child’s education provision would be met by the school named. Mrs X disputes this and says the Council should have arranged a different placement. This matter is therefore not separable from her appeal to the SEND Tribunal.

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Final decision

11. We will not investigate Mrs X’s complaint because the issues raised are not separable from her appeal to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman