The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council not amending Mrs X’s child’s Education Health and Care Plan in accordance with the ruling of the Special Educational Needs and Disability Tribunal. The Council has appealed against the ruling of the first-tier Tribunal, and we cannot take any view about what provision it should make while the matter remains within the Tribunal process.
The complaint
Mrs X said the Council had failed to comply with the ruling of the Special Educational Needs and Disability (SEND) Tribunal by naming the school it ordered. She said it had instead appealed against the ruling.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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.
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 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.
I considered the Ombudsman’s Assessment Code.
My assessment
We may investigate a complaint about failure to make SEN provision where a council fails to comply with a ruling of the SEND Tribunal. But we cannot do so, or comment on what educational provision should be made, when a council appeals against the ruling within the SEND appeal process. This is because it is for the SEND Tribunal, whether at first-tier or upper-tier as appropriate, to decide what school should be named for the child.
Final decision
We will not investigate Mrs X’s complaint because the matter complained of concerns the nature of the education for her child. The matter is subject to the decision of the SEND tribunal and any investigation by us would overlap with the Tribunal’s role.
Investigator's decision on behalf of the Ombudsman