The Ombudsman's final decision
Summary: We cannot investigate this complaint about the Council’s failure to make alternative educational provision for the complainant’s child. This is because the complainant has used his right to appeal to the First-tier Tribunal (Special Educational Needs and Disability), and the subject of the complaint is not separable from matters which have been, or could have been, considered by the Tribunal.
The complaint
The complainant, Mr X, complains that the Council failed to make alternative educational provision for his child while he was unable to attend school, and failed to respond appropriately to his subsequent complaint.
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. 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 First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal…such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.
We will not usually investigate complaint handling if we are not investigating the rest of the complaint. This is because there is not usually enough injustice to justify us doing so. We collect information about particularly poor complaint handling practice and report this back to organisations. (Local Government Act 1974, section 24A(6), section 34B(8))
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Mr X’s child has an Education Health and Care (EHC) plan. Mr X says his child was unable to attend the mainstream school named in the EHC plan from September 2025. He argues that the Council’s duty under section 19 of the Education Act 1996 to make alternative educational provision was engaged.
Mr X complains that the Council failed to make section 19 provision on the unreasonable grounds that mainstream education was named in the EHC plan. He further complains that the Council declined to address the issue appropriately, relying on his concurrent appeal to the Tribunal to decline to do so.
The Ombudsman cannot investigate Mr X’s complaint because he has used his right to appeal about the content of his child’s EHC plan. Mr X is correct to say that the section 19 duty subsists during an appeal period. However, the suitability of the child’s school is a matter which was, or could have been, before the Tribunal.
Where an appeal is made, the law prevents the Ombudsman from investigating the matters which are the subject of the appeal. The courts have decided that this restriction also applies to matters which the Tribunal could choose to use the wide discretion available to it to consider. In this case, the suitability of mainstream education, and therefore the child’s ability to attend the current school, are caught by this restriction and we have no jurisdiction in law to investigate it. We can therefore express no view on whether the section 19 duty was engaged.
Where a substantive matter cannot be investigated, we will not normally investigate how a council has dealt with a complaint about it. That is the case here.
Final decision
We cannot investigate Mr X’s complaint because he has used his right to appeal to the Tribunal.
Investigator's decision on behalf of the Ombudsman