Summary: Mrs X complained the Council failed to name a suitable educational placement in her child, Y’s, Education, Health and Care (EHC) Plan. Mrs X also complained the Council failed to provide Y with the educational provision it agreed to. I ended this investigation because Mrs X has appealed to the SEND tribunal and the substantive complaints are not separable from the matters at appeal. The remaining matter has not been through the Council’s complaints process.

The complaint

1. Mrs X complained the Council failed to:
• name a suitable educational placement in her child, Y’s EHC Plan;
• provide alternative educational provision in the form of online tutoring between September 2024 and February 2025; and
• provide five hours per week provision in the form of animal education from October 2024 to date.
2. Mrs X says as a result Y has missed out on education which has caused distress, frustration and uncertainty.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. (Local Government Act 1974, section 26(5), section 34(B)6)
5. 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)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
7. 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)
8. 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.
9. 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.

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How I considered this complaint

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

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What I found

Relevant law and guidance

12. 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. 
13. 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.
14. 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)

What happened

15. Mrs X has a child Y who has special educational needs. In February 2024, the Council issued Y’s Education, Health and Care Plan and provided Mrs X’s appeal rights if she disagreed with the content of the Plan. Mrs X subsequently appealed to the tribunal as she did not agree with the suitability of the school placement named in the Plan.
16. The Council agreed for Y to attend online tutoring which was meant to start in September 2024 as alternative provision. As part of Y’s Plan, he was also entitled to five hours per week of animal education but Mrs X told us he has not received this.
17. In December 2024, Mrs X made a complaint that Y had still not started the online tutoring. Mrs X did not raise any concerns with the five hours per week of animal education.
18. In February 2025, Y started the online tutoring. The following month, the Council issued a final complaint response upholding Mrs X’s complaint.
19. In March 2025, the tribunal issued a final order directing the Council to amend the named placement in the Plan.
20. Mrs X remained dissatisfied with the Council’s handling of the matter and complained to us.

My findings

21. Mrs X complained the school named in the EHC Plan dated February 2024 was unsuitable. Mrs X had a right of appeal to the SEND tribunal which she exercised and so for the reasons set out in paragraph 5 I cannot investigate it.
22. Mrs X complained the Council failed to provide Y with the online tutor it agreed to as alternative provision between September 2024 and February 2025. Y required the online tutor as Mrs X considered the school the Council had named was unsuitable and so she did not send him. I cannot investigate this part of Mrs X’s complaint as 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. Mrs X’s substantive complaint is not separable from the appeal.
23. Mrs X also said the Council failed to provide Y with five hours a week animal education. These matters are separate and have not been through the Council’s complaints procedure. It was reasonable for Mrs X to raise this with the Council in her complaint in December 2024. Therefore, I have not investigated this part of the complaint.

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Decision

24. I ended this investigation because the substantive elements of the complaint are outside of our jurisdiction and the Council has not yet had the opportunity to consider the remaining matter.

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Investigator's decision on behalf of the Ombudsman