The Ombudsman's final decision
Summary: We cannot investigate this complaint that the Council failed to make alternative educational provision for the complainant’s child while he could not attend school. This is because the complainant has used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability), and the courts have established the this prevents the Ombudsman from investigating what happened while the appeal was pending.
The complaint
The complainant, Mrs X, complains that the Council failed to make educational provision for her son while he was unable to attend 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 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…”.
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).
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
Mrs X’s child has an Education Health and Care (EHC) plan, which was issued in July 2025. The EHC plan named a mainstream school which Mrs X does not believe is appropriate for him. She submitted an appeal to the Tribunal.
Mrs X says her son was unable to attend the school at phase transfer in September 2025. She argues that the Council’s duty under section 19 of the Education Act 1996 to make appropriate alternative provision was engaged. She complains that it failed to do so until December.
The Ombudsman cannot investigate Mrs X’s complaint. This is because she has used her right to appeal to the Tribunal. The section19 duty subsists throughout the period when an appeal hearing is pending. But that does not mean the Ombudsman can intervene.
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. This means that if a child is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent’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. That is the case here.
The period we cannot investigate starts from the date the appealable decision is made. If the parent 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. We therefore have no jurisdiction to investigate what happened between September and December 2025 and cannot do so.
Final decision
We cannot investigate Mrs X’s complaint because she has used her right to appeal to the Tribunal.
Investigator's decision on behalf of the Ombudsman