The Ombudsman's final decision
Summary: We cannot investigate Mrs X’s complaint about the removal of one-to-one educational provision for her daughter. That is because the law says we cannot investigate the actions of schools. We also cannot investigate her complaint the Council’s Educational Psychologist’s report was flawed. That is because Mrs X appealed to the Tribunal.
The complaint
Mrs X complained about the removal of her daughter’s (Y’s), one-to-one provision at school. She said that had a significant impact on Y’s educational progress and wellbeing.
She also complained about the content of an Educational Psychologist’s report. She said it relied on inaccurate information and did not represent Y’s educational needs. Because of that, Mrs X said she had to arrange an independent assessment of Y’s needs.
Mrs X wants the Council to financially reimburse her for the independent assessment. She also wants the Council to reimburse the legals costs she incurred as part of Y’s Education, Health and Care plan (EHC plan) appeal.
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 most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended) 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) 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) 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 and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
The Council has a statutory duty to provide the educational provision set out in Section F of the EHC plan. Y has had an EHC plan since 2018. The Council issued further EHC plans in May 2022 and January 2023. These plans did not state Y needed one-to-one provision. In the Council’s complaint response, it confirmed that was additional provision provided at the discretion of Y’s school.
We cannot investigate Mrs X’s complaint about the removal of one-to-one provision for Y. That is because that provision was not specified in Y’s EHC plans. It was the School’s decision to remove the provision. We have no jurisdiction to investigate the actions of schools.
We cannot investigate Mrs X’s complaint about the Educational Psychologist’s report used in the 2023 EHC plan. That is because any flaws in that report would have affected the content of the final EHC plan. Mrs X appealed that EHC plan to the SEND Tribunal. We cannot investigate where someone has used an alternative remedy for the same injustice. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed; in this case Mrs X’s legal and private assessment costs.
Final decision
We cannot investigate Mrs X’s complaint because we cannot look at the actions of schools, and other matters have been considered by the SEND Tribunal.
Investigator's decision on behalf of the Ombudsman