Summary: We cannot investigate Ms X’s complaint the Council failed to provide her child with alternative provision and special educational provision. This is because Ms X has already used an alternative legal remedy when she appealed to a tribunal and these matters are closely related to that appeal. Nor will we investigate her complaint the Council did not provide school transport for her child because there is not enough evidence of fault by the Council to warrant an investigation.

The complaint

1. Ms X complained the Council failed to provide her child, Y, with alternative provision (AP) and special educational provision (SEP) when they could not attend school.
2. Ms X said the Council also failed to follow a direction from the Tribunal which caused further delay and injustice to Y.
3. Additionally, Ms X complained the Council did not provide transport when Y was attending an alternative education provider. She said she had to pay for Y’s transport costs, and she wanted those costs refunded.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal…such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.
7. 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.
8. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

9. I considered information provided by the complainant.
10. I considered the Ombudsman’s Assessment Code.

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My assessment

11. In June 2023, Ms X appealed to the Tribunal about Y’s Education, Health and Care (EHC) Plan. This appeal ended in June 2024. Between 2023 and 2024, Y attended an alternative education provider, arranged by Y’s school.
12. In January 2024, Y stopped attending school altogether, including receiving any additional provision. Ms X complains the Council did not then provide AP or their SEP, while Y was not attending school from January 2024 until June 2024.
13. We cannot investigate Ms X’s complaint the Council failed to provide AP or SEP from January 2024 until June 2024. There was an ongoing appeal to the Tribunal about the suitability of the school and provision in Y’s EHC Plan. Y’s non-attendance at the school was related to its suitability and so these matters are not separable from Ms X’s appeal.
14. Nor can we investigate the Council’s failure to follow a Tribunal direction during the appeal because the law I have highlighted at paragraph six prevents us from investigating conduct during a Tribunal appeal.
15. We will not investigate Ms X’s complaint the Council did not provide school transport when Y attended an alternative education provider. In its complaint response, the Council told Ms X it had not received an application for transport from Ms X. Additionally, councils do not have a duty to provide transport if the school has commissioned the alternative placement. There is not enough evidence of fault by the Council to warrant investigation into this matter.

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Final decision

16. We cannot investigate Ms X’s complaint because the matters are not separable from an appeal to the Tribunal. We will not investigate the other parts of Ms X’s complaint because there is not enough evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman