Summary: Ms X complained on behalf of Ms Y. Ms Y complained the Council failed to provide her son, Z, with suitable full-time education from February 2023 until November 2023. Ms Y also complained the Council failed to reimburse her for education she funded from March 2023 to July 2023. Ms Y said Z missed education and this impacted her financially. We have ended the investigation as the complaint is outside our jurisdiction.

The complaint

1. Ms X complained on behalf of Ms Y. Ms Y complained the Council failed to provide her son, Z, with suitable full-time education from February 2023 until November 2023. Ms Y also complained the Council failed to reimburse her for education she funded from March 2023 to July 2023. Ms Y said Z missed education and this impacted her financially.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with a Council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
4. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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)
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

7. I have exercised discretion to consider events in this case back to December 2022. This is when Z stopped attending school and there is a key decision, impacting our jurisdiction, so it is necessary to go back to this date.
8. I have not investigated any part of the complaint after November 2023. Any matter after this date must be considered by the Council before the Ombudsman can consider it.

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How I considered this complaint

9. I read Ms X’s complaint and spoke to her about it on the phone.
10. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
11. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background information

12. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
13. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
14. 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. 
15. There is a right of appeal to the Tribunal against a council’s:

• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;
• amendment to these elements of an EHC Plan; and
• decision not to amend an EHC Plan following a review.

16. 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)
17. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’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.
18. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person 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 would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
19. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 

What happened

20. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
21. Z has an EHC Plan. He was on roll at school C. He stopped attending in December 2022.
22. The Council issued an updated final EHC Plan in January 2023. The plan named school C. Ms Y disagreed with the plan and asked for an emergency review. The Council told Ms Y to appeal the plan if she disagreed with it. Ms Y told the Council Z was not attending school C and she arranged for him to attend an alternative placement at placement D.
23. Ms Y asked the school to hold an emergency annual review meeting, and it agreed to. The school held the meeting in March 2023. The meeting discussed increasing the time Y spent at placement D to three days per week. School C recommended the Council amend the plan. After the meeting Ms Y contacted the Council, and asked it to confirm it would reimburse her for placement D. The Council stated it would not reimburse Ms Y but, if it agreed to fund placement D, it would pay the school who would contract placement D.
24. The Council told Ms Y it would not amend Z’s Plan in May 2023.
25. School C asked the Council to fund the placement and provided information in May 2023. The Council refused the request in June 2023. The Council then agreed this funding in July 2023.
26. Ms Y told the Council the contents of the plan were unsuitable. She appealed the contents of the EHC Plan to the Tribunal in July 2023.
27. The Tribunal made its decision in May 2024. The Tribunal decided Z would receive an Education Other Than At School (EOTAS) package. The Council issued an updated final EHC Plan in June 2024.
28. Ms X complained to the Council in July 2024. She said the Council failed to repay the costs of placement D until July 2023. Ms X said the Council had failed in its section 19 duty to Z.
29. The Council responded to the complaint in September 2024. The Council apologised for the delay. It acknowledged it failed to secure suitable education for Z. It apologised and offered a payment of £1,425 for missed provision from February 2023 to July 2023. The Council said it would not reimburse Ms Y for the costs of placement D as she could have included this in the appeal to the Tribunal.
30. Ms X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Ms X would like the Council to apologise and reimburse Ms Y for the missed education.
31. In response to my enquiries the Council stated it would not reimburse Ms Y’s costs as she could have raised this during her Tribunal appeal.

My findings

32. Councils have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”.
33. The Courts have said it is for a council to decide what is ‘suitable education’. The Courts have said that the question is whether the education offered is reasonably possible or reasonably practicable for the child to access, not whether the parent or child have a reasonable objection to attending that school. The Council says the school C could meet Z’s needs. For this reason, it says it did not have a duty to provide an alternative education.
34. However, I cannot make any finding on missed education in this case. The Council issued a final EHC Plan in January 2023. This plan gave Ms Y an appeal right to the Tribunal. There was also a further appealable decision in May 2023 when the Council issued its decision not to amend the plan following the emergency annual review. Ms X stated this is separable from the Council’s section 19 duty. In relevant caselaw, R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207, the courts determined the Ombudsman does not have jurisdiction to consider any matters connected to the appealable decision, if it was reasonable for the individual to appeal to the Tribunal. The case law confirms once a Council issues an EHC Plan, the question of section 19 provision was the same as the question of whether the provision named in the EHC Plan was suitable. Ms Y disagreed with the school named in the January 2023 EHC Plan. This is an appealable decision. It was reasonable for Ms Y to appeal this, as she did. Ms Y also could have appealed the Council’s May 2023 decision.
35. The period the Ombudsman cannot consider starts from when the Council issued the appealable decision, January 2023. The complaint is the Council has not provided suitable education from February 2023. This is within the two months Ms Y had to submit the appeal from the January 2023 plan. Therefore, I cannot consider any missed education in this case.
36. Ms X also raised concerns about the Council’s response to the complaint. Ms X disagreed costs for placement D Ms Y paid was an appealable decision to the Tribunal. As matters about Z’s education are out of the Ombudsman’s jurisdiction, and this is about the cost of missed education, the matter is too closely linked to the appeal for us to be able to consider it.

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Final decision

37. I have ended the investigation as the complaint is outside our jurisdiction.

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Investigator's decision on behalf of the Ombudsman