The Ombudsman's final decision
Summary: We will not investigate this complaint about how the Council managed a child’s education provision while a tribunal considered appeals about the child’s education. This is because the matter complained about is not separable from the appeals, and the courts have ruled we cannot say what education should be provided in circumstances such as this.
The complaint
The complainant, who I will call Mrs X, complains about how the Council managed her child’s education provision from September 2021 to June 2022. Mrs X says the school placement arranged by the Council was not suitable and therefore the Council should have arranged alternative education provision.
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. (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 SEND Tribunal in this decision statement.
The courts have held that where someone has appealed to the SEND Tribunal, we have no authority to consider what educational provision should be made for the child concerned. (Local Government Act 1974, section 26(6)(a), R v the Commissioner for Local Administration ex parte PH, 1999); R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
In June 2021, Mrs X appealed the Council’s decision not to issue her child with an EHC plan to the SEND Tribunal. In September 2021 Mrs X’s child was due to start a new school year at a mainstream school, but Mrs X says the school did not meet his needs. Mrs X’s appeal to the SEND tribunal was successful and In January 2022, the Council issued a final EHC plan. Mrs X however appealed the contented to the SEND tribunal, including the named school placement.
Mrs X’s child started a new school in June 2022 and the appeal to the SEND Tribunal was subsequently concluded via a consent order and the Council issued an amended final EHC plan, naming the new school.
We can only investigate a complaint about a Council’s duty to arrange alternative education provision if the matter is separable from an appeal to the SEND Tribunal. That would require the reason for absence to be unconnected to the reason for the appeal.
The above is not the case here. The reason Mrs X’s child did not attend school are because Mrs X felt the school could not meet her child’s needs. These reasons are too closely linked to the appeals that were considered by the SEND Tribunal and therefore this places Mrs X’s complaint outside of our jurisdiction.
Final decision
We will not investigate Ms X’s complaint because the issues are not separable from those considered by a tribunal.
Investigator's decision on behalf of the Ombudsman