Summary: We cannot investigate this complaint about failure to secure suitable education and special educational needs provision as set out in an Education, Health and Care Plan while a child was out of school. Mrs X appealed to the First-tier Tribunal (Special Educational Needs and Disability) about the suitability of the school named in the Plan. The non-attendance at school is linked to the subject of Mrs X’s appeal. The Tribunal agreed the school was suitable. We will not investigate the rest of Mrs X’s complaint about attendance warnings because there is not enough evidence of fault by the Council, or a significant enough injustice, to justify an investigation.

The complaint

1. Mrs X complains the Council failed to ensure her child D received suitable education and special educational needs (SEN) provision when D stopped attending school from September 2022 to May 2025. She also says the Council wrongly issued warnings about D’s non-attendance in January 2025.
2. Because of this Mrs X says D missed education and SEN provision and she had to pay for private tuition herself. She also says the whole family experienced distress.
3. Mrs X wants the Council to provide a financial remedy to recognise the impact of D’s missed education.

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The Ombudsman’s role and powers

4. 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 an investigation if we decide:
• there is not enough evidence of fault to justify investigating; or
• any injustice is not significant enough to justify our involvement.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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. 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) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
8. 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)
9. 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 Education, Health, and Care (EHC) Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.

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How I considered this complaint

10. I considered information provided by the complainant.
11. I considered the Ombudsman’s Assessment Code.

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My assessment

12. Mrs X already complained to us in late 2024 about D’s missed education. We told her we could not investigate education D missed from September 2022 to November 2023 because the complaint was late and there were no good reasons it took her longer to complain to us. We cannot look at this again.
13. In responding to Mrs X’s previous complaint, we also told her D’s non-attendance was linked her 2023 Tribunal appeal about the suitability of the school named in D’s EHC Plan. We cannot look at any complaint that overlaps with a Tribunal appeal.
14. The Tribunal decided in October 2023 the school placement the Council named for D was suitable, and the Council issued a new EHC Plan in November 2023 still naming the school. Mrs X disagrees the placement is suitable, so D has remained out of school. Mrs X could have challenged the Tribunal’s decision by applying for it to be set aside, reviewed, or appealed. Regardless, the Ombudsman cannot be used as a route to challenge Tribunal decisions. The reason for D’s non-attendance from November 2023 to May 2025 is still linked to Mrs X’s disagreement about the educational placement in the EHC Plan. Therefore, we cannot consider it. The Tribunal is the correct route to dispute whether the school is suitable.
15. Mrs X also says D has not received the SEN provision in their EHC Plan while out of school. The Council considers D’s school placement to be a suitable setting to deliver the EHC Plan. D has not received the SEN provision because they have not attended school. Again, this is linked to Mrs X’s disagreement about the school being suitable, so we cannot consider it.
16. Mrs X also says the Council wrongly issued warnings about D’s non-attendance in January 2025. I understand receiving attendance warnings caused Mrs X distress. However, there is not enough evidence we would find fault with the Council’s decision to issue the warnings if we were to investigate. Also, this part of Mrs X’s complaint alone would not be a significant enough injustice to justify our involvement.

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Final decision

17. We cannot investigate Mrs X’s complaint because she appealed to the SEND Tribunal about the school named in the Plan, so D’s non-attendance is linked to the subject of Mrs X’s appeal. The Tribunal agreed the school was suitable. We will not investigate the rest of Mrs X’s complaint about attendance warnings because there is not enough evidence of fault by the Council, or a significant enough injustice, to justify an investigation.

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Investigator's decision on behalf of the Ombudsman