The Ombudsman's final decision
Summary: We cannot investigate this complaint about how the Council reached a decision to name a school on a child’s Education Health and Care plan. This is because the complainant has appealed the Council’s decision to a tribunal which places the matters outside of the Ombudsman’s jurisdiction
The complaint
The complainant, who I will call Ms X, complains about how the Council named a school on son’s Education Health and Care (EHC) plan. Ms X says the panel were not made aware that the school could not meet her son’s needs when the decision was made. Ms X says the Council’s decision means her son is now out of education.
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 about the same matter. (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 and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
I cannot investigate Ms X’s complaint about the school named on her son’s EHC plan. This is because she has appealed this decision to the SEND Tribunal. This places the Council’s decision to name the school outside of our jurisdiction.
The courts have said that if someone has appealed to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC Plan we cannot seek a remedy for lack of education after the date the appeal right started if it is linked to the disagreement about the school place named. For this reason we cannot investigate the education provision provided to Ms X’s son whilst the SEND tribunal considered her appeal.
Final decision
We will not investigate Ms X’s complaint because the matter has been subject to an appeal to the SEND Tribunal.
Investigator's decision on behalf of the Ombudsman