The Ombudsman's final decision
Summary: We will not investigate this complaint about how the Council managed a child’s education provision while a tribunal considered an appeal about the child’s school placement. This is because the matter complained about is not separable from the appeal, and the courts have ruled we cannot say what education should be provided in such circumstances.
The complaint
The complainant, who I will call Mrs X, complains that the Council failed to arrange suitable education provision for her daughter whilst she waited for a tribunal to consider her appeal about her school placement. Mrs X says she had to arrange and pay for education provision herself and that the Council should refund her for this. I will call Mrs X’s daughter Z.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended) 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.
The courts have held that where someone has appealed to the SEND Tribunal, we have no authority to consider what educational provision should be made for the child concerned. (Local Government Act 1974, section 26(6)(a), R v the Commissioner for Local Administration ex parte PH, 1999); R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
Mrs X’s daughter, Z, has Special Educational Needs and is therefore subject to an Education Health and Care (EHC) plan. The Council named a school on Z’s plan which Mrs X appealed to the SEND Tribunal.
Prior to the tribunal hearing, the Council arranged placements for Z but these unfortunately broke down. Mrs X therefore arranged her own provision which she paid for. Mrs X asked the Council to refund her for this, but it refused.
We can only investigate a complaint about a Council’s duty to arrange or pay ofr alternative education provision if the matter is separable from an appeal to the SEND Tribunal. That would require the reason for absence to be unconnected to the reason for the appeal.
The above is not the case here. The reason Mrs X’s daughter has not been able to attend school appears too closely linked to her special educational needs and the school placement that the Council decided could meet her needs These are set out in the EHCP which Mrs X has appealed to the SEND Tribunal.
Final decision
We will not investigate Mrs X’s complaint because the issues raised are not separable from matters subject to an appeal to the SEND Tribunal
Investigator's decision on behalf of the Ombudsman