The Ombudsman's final decision
Summary: We cannot investigate this complaint about the provision of education for the complainant’s son while he is out of school. This is because the complainant has used her right to appeal to a tribunal and this places the matter outside our jurisdiction.
The complaint
The complainant, who I will refer to as Mrs B, complains that the Council is in breach of its duty to provide suitable alternative education while her son is out of school.
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.
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
Mrs B’s son has an Education Health and Care Plan (EHCP). Mrs B has appealed to the SEND Tribunal against the content of the EHCP. She contends that the school named in the EHCP is not appropriate for her son, and she has not sent him there since the place became available in September 2022.
Mrs B argues that, as her son is not in school, the Council has a duty to make alternative provision for him pending the outcome of the appeal. The Council denies that it is at fault. It contends that the school named in the EHCP is suitable and provision of a place there fulfils its duty to provide a school place, and it is not required to make further provision.
The Ombudsman cannot investigate this complaint. By law, the fact that Mrs B has used her right to appeal places anything relating to the matters at issue outside our jurisdiction. The Council has provided a school place and its suitability or otherwise is not a matter for the Ombudsman. There is no discretion available to us on this point.
Final decision
We cannot investigate Mrs B’s complaint because she has used her right to appeal to the SEND Tribunal.
Investigator's decision on behalf of the Ombudsman