Summary: Mrs X complained the Council unlawfully removed her son Y from his school following a Tribunal decision about his Education, Health and Care Plan, failed to advocate for him to remain at the school, proposed an inadequate tuition package, had poor communication, made discriminatory assumptions about her religious views and breached data protection law. We cannot investigate the removal of Y from his school because she has started a judicial review about the Council’s decision, have found no fault regarding the tuition package, communication and discriminatory assumptions, and have decided to stop investigating the data protection complaint because the Information Commissioners Office is better placed to consider it.

The complaint

1. Mrs X complains about the Council’s handling of her son Y’s educational provision. In particular she complains the Council:
1. Unlawfully decided to remove Y from his school.
2. Failed to ensure a social worker advocated for him to remain at the school.
3. Proposed a tuition package for Y after he was removed from school that was not adequate educational provision.
4. Had poor communication including responses that were false, misleading, derogatory, uncoordinated and inadequate.
5. Made discriminatory assumptions about her religious views.
6. Failed to properly respond to subject access requests, freedom of information requests and breached data protection law.
2. Mrs X said the issues caused significant injustice, distress, regression and financial strain. She would like Y to be reinstated at the school he was removed from, an investigation into Council processes, disciplinary investigations, and £12,000 compensation for the distress caused.

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The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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.
5. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)
6. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide there is another body better placed to consider the complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
7. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
8. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
9. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(1), as amended)

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What I have and have not investigated

10. I have started my investigation from April 2025, when the Council decided to remove Y from his school. I have ended my investigation in June 2025 when the Council issued an amended final Education Health and Care Plan for Y that named a different school.
11. I have decided not to investigate before April. This is because the Tribunal decided an earlier appeal from Mrs X about Y’s educational placement in March, and the law says I cannot trespass in any way on matters considered during Tribunal proceedings.
12. I have decided not to investigate after June because Mrs X appealed the Council’s decision to name a different school in Y’s Education, Health and Care Plan to the Tribunal and I cannot investigate a complaint if someone has complained to the Tribunal about the same matter. I have also decided not to investigate other matters after June because we usually expect the Council to have a chance to investigate new matters before we consider whether to investigate, and I have seen no good reason to exercise discretion to investigate new matters in this case.

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How I considered this complaint

13. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
14. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
15. 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 found

Relevant Law and Guidance

Education, Health and Care Plans

16. 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. 
17. The EHC Plan is set out in sections which include: 

• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 

18. 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.

19. 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)

Section 19 duty to arrange alternative education provision

20. 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.
21. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))

What happened

22. This is a summary of the key events. It is not a chronology of everything that happened. The amount of information provided by Mrs X and the Council was considerable. In this decision, I have not referred to every element of that information, but I have not ignored its significance.
23. Mrs X’s son, Y, has special educational needs and disabilities. He has an EHC Plan. In 2024 he attended a special school that was named in section I of his EHC Plan. I shall refer to this as School A. In 2024 Mrs X appealed to the Tribunal because she disagreed with the Council’s decision to name School A in Y’s EHC Plan.
24. In March 2025 the Tribunal ordered the Council to issue a new EHC Plan that did not name School A, but listed “Special School” in section I instead.
25. The Council issued a final amended EHC Plan on 20 March in line with the Tribunal’s order. It started to consult with different special schools that it thought Y could attend.
26. In April the Council decided to remove Y from School A’s roll. This is also known as “off-rolling”. It said it did this in line with the Tribunal’s order. Mrs X disagreed that the decision was in line with the Tribunal’s order and promptly complained to the Council.
27. The Council agreed to extend the time Y could remain at School A, but maintained its decision. It removed Y from School A’s roll and he stopped attending on 2 May.
28. The Council offered Y an interim tuition package of 25 hours per week while a new school was identified. Mrs X did not accept the tuition package.
29. Mrs X escalated her complaint about the Council’s decision. She also complained that a social worker from the Council had not advocated for Y to remain on roll at School A, and that the Council had breached data protection law when consulting with an education provider. She lodged freedom of information (FOI) and subject access requests (SARs).
30. On 6 June the Council issued a final amended EHC Plan that named a different special school that it decided Y would attend. I shall refer to this as School B. Mrs X promptly appealed the Council’s decision to the Tribunal. She asked the Tribunal to remove School B from the EHC Plan and replace it with School A.
31. Later in June the Tribunal refused Mrs X permission to appeal.
32. Mrs X appealed the Tribunal’s decision to the Upper Tribunal. Her grounds of appeal were that the Tribunal had wrongly failed to ensure Y was not ‘off-rolled’. Mrs X asked the Upper Tribunal to suspend the Tribunal’s decision to name “Special School” in Y’s EHC Plan.
33. Mrs X complained to us on 9 July.
34. The Upper Tribunal considered Mrs X’s appeal later in July. It refused Mrs X’s appeal.
35. In August, Mrs X applied to the courts for a judicial review of the Council’s decision to remove Y from School A’s roll.

Analysis

36. I make findings regarding each part of Mrs X’s complaint in order below.

a) Complaint the Council unlawfully decided to remove Y from his school, and b) Complaint it failed to ensure a social worker advocated for him to remain at the school.

37. Mrs X has appealed to the Tribunal, Upper Tribunal and applied for a judicial review about part a) of her complaint. I have decided that part b) of the complaint is directly linked to part a) and not separable from the Tribunal and court proceedings.
38. The law says I cannot investigate a complaint if someone has appealed to a tribunal or started court action about the matter.
39. The only exception is where proceedings have been taken which are misconceived. This is where someone has asked the tribunal or court to do something it cannot legally do.
40. In this case, the Upper Tribunal found the Tribunal was not arguably responsible for the Council’s decision to off-roll Y from School X. For this reason I acknowledge Mrs X’s appeals to the Tribunal and Upper Tribunal may have been misconceived.
41. However, I have seen no evidence that Mrs X’s application for a judicial review about the Council’s decision to remove Y from School A was misconceived.
42. I have therefore stopped my investigation into these parts of Mrs X’s complaint because she has started court action about the matters and the law says I cannot investigate them.

c) Complaint the proposed tuition package for Y was not adequate.

43. The Council had a duty to secure the specified special educational provision in Section F of Y’s EHC Plan from the date it was issued at the beginning of March.
44. I note the Council’s stage two complaint response letter dated 1 July. It acknowledged the tuition package may not have exactly replicated all elements of the EHCP provision that should be delivered in a school environment
45. I have considered the provision based on an ordinary interpretation of how it is worded in the EHC Plan. I have not made findings on some of the provision because the wording is vague. Where wording is vague it is not for us to speculate about what may have been intended, the remedy is to appeal to the Tribunal to re-write the Plan and properly specify and quantify provision.
46. I find the evidence shows, on balance, the tuition package secured the bulk of the special educational provision in Y’s EHC Plan.
47. I also note the Council considered its Section 19 duty and decided the tuition package of 25 hours per week was suitable for Y’s age, ability and needs.
48. I find the tuition package did not fully cover the provision. This is because some of it was listed as being delivered in a school environment and the tuition package did not provide a school environment. For this reason I find the Council did not secure part of Y’s Section F special educational provision. This lasted for 23 school days from 2 May, when he stopped attending School A, until 6 June when it issued the final amended EHC Plan that confirmed a place for Y at School B.
49. I have decided the Council was not at fault for offering the tuition package. This is because I have seen no fault in the Council’s actions to secure Y a placement at a special school in line with his EHCP, or its decision to offer the tuition package whilst it sought the placement.
50. Mrs X said School B could not deliver Y’s provision from 6 June, and appealed the Council’s decision to the Tribunal. I cannot investigate this part of her complaint because the law says I cannot investigate matters that have been appealed to the Tribunal.

d) Complaint the Council had poor communication including responses that were false, misleading, derogatory, uncoordinated and inadequate.

51. I have considered the Council’s communication to Mrs X during the period I have investigated. I have not considered any communication that directly relates to parts a) and b) of the complaint because Mrs X has started court action about those matters. I have decided the Council’s communication about them is not separable from the court action.
52. I acknowledge Mrs X was unhappy with the Council’s communication with her, including the responses to her complaints, its request she stop taking a “scattergun approach” to raising issues, and other matters. However, I find the Council responded to Mrs X’s contact with adequate timeliness. I have seen no evidence of responses that were false, misleading, derogatory, uncoordinated or inadequate.
53. For these reasons I do not find the Council at fault for this part of Mrs X’s complaint.

e) Complaint the Council made discriminatory assumptions about Mrs X’s religious views.

54. I have considered the Council’s decisions and communication with Mrs X during the period I have investigated. I have not considered any decisions or communication that directly relate to parts a) and b) of the complaint because Mrs X has started court action about those matters. I have decided the decisions and communication are not separable from the court action and the law says I cannot investigate it.
55. I have seen no evidence the Council made discriminatory assumptions about Mrs X’s religious views.
56. For this reason I do not find the Council at fault for this part of Mrs X’s complaint.

f) Complaint the Council failed to properly respond to subject access requests, freedom of information requests and breached data protection law.

57. The Information Commissioner's Office (ICO) considers complaints about this part of Mrs X’s complaint. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). Where we receive complaints data protection law, we normally consider it reasonable to expect the person to refer the matter to the ICO.
58. I have decided there is no good reason why Mrs X should not raise these complaints with the ICO. I have therefore decided to stop my investigation into this part of her complaint.

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Investigator's decision on behalf of the Ombudsman