The Ombudsman's final decision
Summary: We cannot investigate Mrs X’s complaint about alternative educational provision and special educational provision. Mrs X has appealed to the First-Tier Tribunal (Special Educational Needs and Disability).
The complaint
Mrs X complained the Council did not make suitable educational arrangements for her child and so did not meet its statutory duties. Mrs X also said the Council refused to consider her complaint about the matter.
Mrs X said this caused distress.
Mrs X wants the Council to properly consider her complaint and arrange suitable educational provision for her child.
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.
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 Mrs X.
I considered the Ombudsman’s Assessment Code.
My assessment
A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the Tribunal or the council can do this.
Mrs X’s child, Y, has an EHC Plan. The Council named a school in Section I. Mrs X disagreed with the named school and so appealed to the Tribunal.
The Council said it would not consider Mrs X’s resulting complaint about a lack of alternative educational provision and special educational provision because she had appealed to the Tribunal.
We cannot investigate Mrs X’s complaint. 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) 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.
The period we cannot investigate starts from the date the appealable decision is made and given to the parents. 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 will also not investigate Mrs X’s complaint the Council refused to consider her complaint. The courts have said we can decide not to investigate a complaint about any action by an organisation concerning a matter which the law says we cannot investigate. (R (on the application of M) v Commissioner for Local Administration [2006] EHWCC 2847 (Admin))
Final decision
We will not investigate Mrs X’s complaint because she appealed to the Tribunal.
Investigator's decision on behalf of the Ombudsman