Summary: We cannot investigate this complaint about the Council’s actions regarding the provision of suitable alternative educational provision to child Y. This is because Mrs X appealed the content of Y’s Education, Health and Care Plan to the First-tier Tribunal and the law does not allow us to investigate any matter that was connected to the appeal.

The complaint

1. Mrs X complained that the Council failed to organise suitable alternative educational provision for her child, Y, when Y was unable to attend school between February 2024 and February 2025.
2. Mrs X said this had caused Y injustice in that they had missed out on a year of education. Y’s mental health and ability to re-engage with education have also been impacted.
3. She wanted the Council to be held accountable for providing alternative provision for Y, and for other children in future. She asked to be suitably compensated for Y’s missed education, for her financial outlay, and for the distress caused to the whole family.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide there is no worthwhile outcome achievable by our investigation. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
6. 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)
7. The First-tier Tribunal (Special Educational Needs and Disability – SEND) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
8. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

9. I considered information provided by Mrs X, including documents sent between her and the Council, as well as relevant law, policy and guidance.
10. I asked Mrs X some questions about her complaint, to which she responded in writing. I also spoke to Mrs X on the phone.
11. I considered the Ombudsman’s Assessment Code and Guidance on Jurisdiction.
12. Mrs X and the Council had an opportunity to comment on the draft decision statement. I considered their comments before I issued my final decision.

What I found

Law, policy and guidance

EHC Plan 

13. A child or young person with special educational needs (SEN) 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. 

Appeal rights

14. 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.

How 26(6)(a) applies when appeal rights have been engaged and relevant caselaw

15. 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)
16. 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.
17. 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.

If an appeal was lodged, or should have been lodged what can we still look at? 

18. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example: 
• delays in the process before an appeal right started;
• support in an EHC Plan that is not being delivered to the child or young person and we decide the cause is not connected to an appeal that has, or should have, happened; and
• alternative education when the reason the child or young person is not attending education is, in our view, not connected to or is not a consequence of a matter that was, or could have been, part of an appeal to the Tribunal.  

What happened

19. The Council carried out a review of Y’s EHC Plan, and issued a final version of that Plan in February 2023. The Plan named “a state-funded specialist centre for children with Autistic Spectrum Disorder (ASD), attached to a state-funded mainstream school” at Section I. This was the educational placement Y was attending at the time. The Plan set out that Y experienced social communication difficulties, high anxiety which sometimes prevented Y from attending school, and a sleep disorder.
20. Mrs X appealed to the Tribunal regarding the Council’s description of Y’s SEN, the special educational provision specified, and the educational placement named.
21. Mrs X said that Y was unable to attend school from January 2024, with all absences medically authorised due to a deterioration in Y’s anxiety. Mrs X said that, in February 2024, the school agreed with her that Y would not be returning and needed alternative provision. No such provision was put in place.
22. The Tribunal issued its decision in November 2024 ordering the Council to name an alternative ASD special school.
23. When I spoke to Mrs X, she said that the Council’s failure to provide suitable alternative provision for Y, under Section 19 of the Education Act 1996, was not part of the appeal and could not be addressed by the Tribunal.

Analysis

24. The EHC Plan set out that Y experienced high levels of anxiety. Mrs X appealed to the Tribunal as she disagreed the special educational provision and educational placement set out in the February 2023 Plan could meet Y’s needs. This means that her complaint about the provision and placement between when the appeal right arose in February 2023, and when the Tribunal made its decision in November 2024, falls outside our jurisdiction by virtue of section 26(6)(a) of the Local Government Act 1974 as set out in paragraphs 15 to 17.
25. Mrs X complaint is about the lack of alternative provision from January 2024 onwards, when Y was unable to attend school due to anxiety. This is not separable from the content of the appeal itself as it specifically relates to the suitability of the provision and placement available to Y. We have no discretion in this matter.
26. 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). 

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Decision

27. We cannot investigate Mrs X’s complaint about her child’s educational provision because she has used her right of appeal to a tribunal.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman