Summary: Ms X complained the Council failed to provide education for her child from November 2021 to June 2022. Ms X has appealed to the tribunal about her child’s Education Health Care Plan which is inextricably linked to their loss of education. We cannot investigate complaints when a person has appealed to the tribunal about the same matter, so I have ended our investigation.

The complaint

1. Ms X complained the Council failed to provide education for her child from November 2021 to June 2022.
2. Ms X says the Council has accepted that it failed to take any action from November 2021 until January 2022. Ms X says the Council’s actions from January 2022 to June 2022 were inadequate.
3. Ms X says the lack of education has caused an impact not just her child but her family, including herself.

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The Ombudsman’s role and powers

4. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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.
6. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

7. I have considered all the information Ms X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
8. Both Ms X and the Council had opportunity to comment on my draft decision before I made my final decision.

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What I found

What happened

9. On 23 November 2021, Ms X’s child, Y, stopped attending school because of anxiety stemming from Autism Spectrum Disorder (ASD).
10. The Council failed to provide any education for Y in November and December 2021.
11. The Council started to provide support to Y, through her school, in January 2022 by work being sent home and support from the inclusion service. Ms X said the support and education provided was not enough.
12. In June 2022, the Council started alternative provision of education for Y.
13. Ms X sought an Education Health Care (EHC) Needs assessment for Y to get support for Y because of his anxiety and ASD. The Council accepted the application for the EHC Needs assessment and began this process.
14. The Council produced a Final EHC Plan for Y on 9 February 2023. This EHC Plan named Y’s current school as their educational setting.
15. Ms X appealed the Final EHC Plan to the tribunal including an appeal about the level of provision and the educational setting named in the Final EHC Plan.
16. Ms X also complained to the Council about the lack of educational provision by the Council in 2021 and 2022.
17. The Council handled Ms X’s complaint through its complaints process and provided its Stage 2 complaint response on 9 June 2023. The Council accepted it failed to act quickly enough in 2021 to provide education for Y and offered Ms X £1,200 to reflect Y’s lost education. The Council said it provided suitable alternative provision of education from January 2022 onwards. The Council also recognised delays in its complaint handling and offered Ms X £200 to reflect this. The Council paid Ms X the offered £1,400 in June 2023.
18. The tribunal hearing for Ms X’s appeal about the Final EHC Plan is scheduled for November 2023.

Analysis

19. I cannot investigate Ms X’s complaint about the lack of education provided for her child. This is because Ms X has appealed the EHC Plan to the tribunal. When a person appeals to a tribunal about a matter this presents a jurisdictional bar to the Ombudsman being able to investigate the same matter.
20. Ms X’s child’s absence from school was because of anxiety and ASD. Ms X applied for an EHC Plan from the Council to support her child’s education because of these same difficulties. This means the EHC Plan is inextricably linked to Ms X’s child’s absence from school.
21. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC plan, or disputes the level of support provided in an EHC Plan, which links to the reason a child was absent from school, we cannot seek a remedy for lack of education. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
22. Ms X’s appeal to the tribunal presents a jurisdictional bar to the Ombudsman investigating the lack of education provided for Ms X’s child in 2022.

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Final decision

23. I have ended my investigation because Ms X has appealed to the tribunal about a matter inextricably linked to her complaint. This presented a jurisdictional bar to the Ombudsman investigating this complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman