Summary: Ms X complained the Council failed to provide her child with suitable, alternative education when her child was out of school for two years. In recognition of the injustice caused, the Council has paid Ms X a symbolic financial remedy and there are already service improvements underway at this Council. We therefore decided to discontinue this investigation, as further investigation would not lead to a worthwhile or different outcome.

The complaint

1. Ms X complained the Council failed to provide her child, Z, with suitable alternative education when Z stopped attending school in January 2023.
2. Ms X said as a result, Z missed out on more than two years of education and specialist support and the family have been caused a period of significant frustration and distress.

Back to top

The Ombudsman’s role and powers

3. 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
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))

Back to top

How I considered this complaint

6. I considered evidence provided by Ms X and the Council and spoke to Ms X about her complaint over the phone.
7. Ms X and the Council had the opportunity to comment on a draft decision. I considered all comments received before making a final decision.

Back to top

What I found

SEND Tribunal

8. 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.

EHC Plans

9. A young person with special educational needs may have an Education, Health and Care (EHC) plan. This sets out their needs and what arrangements should be made to meet them.
10. The EHC plan is set out in sections which include:
• Section B: The child or young person’s special educational needs. 
• Section F: The special educational provision needed by the child or the young person.  
• Section I: The name and/or type of school. 
11. The Ombudsman cannot direct changes to the sections about education or name a different educational setting. Only the Tribunal can do that.
12. 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)

What happened

13. Ms X’s child, Z, stopped attending school in January 2023 due to emotionally based school avoidance and because Ms X said she was not managing in a mainstream setting.
14. Ms X complained to the Council in late November 2024. She said Z had been out of education for almost two years and the Council had failed to put in place suitable alternative education for her child.
15. The Council accepted through its complaints process that it failed to arrange alternative provision soon enough for Z. It said from November 2023 it should have begun providing Z with alternative provision as it was clear by then that the school’s reintegration plan had not been successful.
16. However the Council maintained that a mainstream school setting would be suitable with the right support and if Ms X disagreed, she should appeal Z’s EHC Plan to the Tribunal. Ms X appealed the Plan.
17. The Council offered Ms X £9,000 as a financial remedy to recognise the injustice caused to Ms X and Z between November 2023 to February 2025 when Z was not receiving suitable alternative provision.
18. Ms X accepted the financial remedy but brought her complaint to the Ombudsman as she said Z was still without suitable alternative education.

My findings

19. For the reasons set out in the ‘role and powers’ section of the decision, we would not investigate Ms X’s complaints as far back as January 2023, as Ms X could have complained to us about these issues sooner.
20. We would not investigate any lack of provision which occurred after the Council’s final complaint response in February 2025. Events after this date are new issues and the Council should have an opportunity to them through its complaints process before we investigate them.
21. We also cannot investigate some parts of Ms X’s complaint because she appealed to a tribunal. Ms X sought changes to the named provision in Z’s EHC Plan and so used the appropriate route to resolve this by appealing to the SEND Tribunal.
22. The Council has accepted fault through its complaints process and paid Ms X a financial remedy of £9,000 to reflect a period of missed provision for Z between November 2023 and February 2025.
23. In addition to this, following several cases this year where the Ombudsman has found similar fault and injustice in relation to alternative provision as well as delays in issuing EHC Plans, this Council has agreed to make improvements to its service. The Council has already used our investigations as learning cases with staff and is reporting back to the Ombudsman on its action plan for resolving these issues. These service improvements are still underway.
24. I do not consider that any further investigation of Ms X’s complaint would lead to a meaningful outcome for Ms X. If we investigated and found fault leading to injustice, we would be unlikely to recommend any higher financial remedy than the one already offered, due to restrictions on our powers, which mean we cannot investigate the entire period Z was out of education. We also would not repeat service improvement recommendations that are already in progress at the Council. I have therefore decided to end this investigation as there is no worthwhile outcome achievable by our investigation.
25. It is open to Ms X to complain to the Council about the later period of missed provision she said Z experienced between February and November 2025. Once this complaint has concluded the Council’s complaints process, Ms X can ask the Ombudsman to consider the complaint.

Back to top

Decision

26. I have ended this investigation as there is no worthwhile outcome achievable by further investigation.

Back to top

Investigator's decision on behalf of the Ombudsman