The Ombudsman's final decision
Summary: We cannot investigate this complaint the Council did not provide ‘Education Otherwise Than At School’. That is because the complainant has appealed to tribunal. Therefore, we have no jurisdiction to consider the complaint.
The complaint
Ms X complained about the Council’s Special Educational Needs (SEN) Service. She said it had refused her request for Education Otherwise Than At School (EOTAS), despite arranging home tutoring. She said that tutoring had not been consistent. She said because of that, Y had fallen behind academically.
Ms X wants the Council to arrange EOTAS for Y, or provide education in a mainstream school, with private tuition to enable her to catch up.
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 late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended) 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 SEND Tribunal in this decision statement.
The courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Y has an Education Health and Care (EHC plan) plan. In February 2022 Ms X took Y off-roll from the School specified in the EHC plan. She told the Council she intended to Electively Home Educate (EHE) Y. The Council issued Y an updated EHC plan specifying the Ms X deregistered Y from the School. The Council also arranged an Emergency Annual Review (EAR) to reviews Y’s EHC plan.
The Council arranged home tutoring for Y, to ensure she continued to receive a suitable education. There was an initial delay in it setting that up, however, as of May 2022, that provision was in place.
Throughout summer, the Council communicated with Ms X about Y’s EHC plan. It consulted with her preferred schools. In August 2022, it issued an amended EHC plan. That specified Y needed a special school. It did not name a school. The Council continued to provide Y home tutoring. Ms X subsequently appealed the Council’s final EHC plan.
Ms X complained to the Council in June 2023 about how it’s SEN Service. She brought her complaints to the Ombudsman in March 2024.
We will not investigate Ms X’s complaints about how the Council arranged education for Y after she deregistered it from school in February 2022. That is the events she complains of occurred more than twelve months before she came to the Ombudsman. Therefore, this is a late complaint. It was reasonable for Ms X to complain to us sooner if she was unhappy with the Council’s actions.
In addition, we would also not investigate because: The Council arranged home tutoring for Y from May 2020, including a referral into Speech and Language Services. Although a short delay, there is not enough evidence of fault to justify our involvement.
If Ms X was unhappy with the amended EHC plan after she took Y off-roll, it was reasonable for her to appeal to the SEND Tribunal.
We cannot investigate Ms X’s complaints around educational provision from August 2022. That is because Ms X has appealed to the SEND Tribunal about the content and provision specified in Y’s EHC plan. That removes this complaint from our jurisdiction. We have no power to direct the Council to provide Y EOTAS.
Final decision
We cannot investigate Ms X’s complaint because she has appealed to tribunal.
Investigator's decision on behalf of the Ombudsman