The Ombudsman's final decision
Summary: We cannot investigate Mrs X’s complaint about the Council’s failure to provide her son Y with a school placement, to arrange full-time education and to deliver special educational provision included in Y’s Education Health and Care Plan. Mrs X appealed to the SEND Tribunal. Some of the issues complained about are part of her appeal and others are closely linked to the appeal.
The complaint
Mrs X says the Council failed to provide Y with a school placement. She also complains about the lack of full-time alternative provision and non-delivery of special educational provision included in Y’s Education Health and Care (EHC) Plan.
Mrs X says the Council’s failings meant Y was isolated from his peers and getting academically behind. Educating Y at home also had a negative impact on the whole family.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
In determining whether to initiate, continue or discontinue an investigation we act in accordance with our own discretion, subject to the provisions of sections 24A, 26 and 26D of the Local Government Act 1974. (Local Government Act 1974, section 24A(6), as amended) 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 courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207) Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).
The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the SEND Tribunal in this decision statement.
How I considered this complaint
I spoke with Mrs X and considered the information she provided.
I reviewed the documents received from Mrs X and from the Council.
Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
What happened The Council issued a final EHC Plan for Y in the second week of November 2024. In Section I it named a mainstream school as a type.
Following a formal mediation the Council amended Y’s EHC Plan in January 2024.
When not attending his mainstream school Y was receiving some online provision and support from the Special Educational Needs and Disabilities facilitator, which continued until January 2024. Once this provision stopped the Council arranged for Y individual tutoring at home.
Mrs X remained unhappy about the content of Y’s EHC Plan issued in January 2024 and appealed Sections B, F and I to the SEND Tribunal. In her appeal she said the Council failed to include all Educational Psychologist’s (EP) findings in Sections B and F which meant the plan was misleading and did not reflect what Y needed. She also said it was clear from the EP advice Y needed a special school.
The EP advice prepared in June 2023 stated: ‘… it is my opinion that he [Y] will require a specialist setting with small classes and staff trained and experienced in working with young people on the autistic spectrum. (…) In the interim Y requires home tuition or an alternative school provision in order to provide an appropriate curriculum for him.’
At the beginning of 2024 the Council sent consultation letter to some special schools. One of the schools offered Y a place and he started attending in April 2024.
Analysis I cannot consider whether the Council followed the EP advice when naming mainstream school as a type in Section I of Y’s EHC Plan and which school it should have named for Y. Mrs X appealed Section I of Y’s EHC Plan and these matters would be for the SEND Tribunal to decide.
As pointed out in paragraph six of this decision we cannot look at anything that is closely linked to the appeal, including alternative provision. If a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded.
When the Council issued Y’s final EHC Plan in November 2023 and his amended EHC Plan in January 2024 Y was out of school. He was receiving some alternative provision, which the Council replaced by individual tutoring at home. Mrs X appealed Section I as, following the EP advice, she believed Y should be educated in a special school. Delivering alternative provision was consequential to the Council’s failure to name a suitable school for Y. We cannot investigate this issue of Mrs X’s complaint as it was closely linked with her appeal.
Mrs X also complained about the Council’s failure to deliver special educational provision included in Section F of Y’s EHC Plan until April 2024, when Y started attending a special school. Review of Section F shows that most of the provision included in Y’s EHC Plan were recommended for the delivery at school and thus it would be difficult, if not impossible, to deliver them outside the school setting. Some specifically refer to the school setting, others need other pupils to take part. Such view is also supported by the EP advice quoted in paragraph 16 of this decision.
I therefore consider the content of Section F is dependent on the SEND Tribunal decision and consequential to its findings about Section I. Delivery of special educational provision is too closely linked to the appeal for us to be able to investigate.
Final decision
I cannot investigate this complaint. Some of the issues complained about are part of Mrs X’s appeal to the SEND Tribunal and others are closely linked to the appeal.
Investigator’s final decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman