Summary: We cannot investigate Miss X’s complaint about a lack of education during a Tribunal appeal period. We will not investigate the lack of education before then as we cannot investigate education provided by a school and the time period of missing education is not significant enough to justify an investigation.

The complaint

1. Miss X says the Council has failed to provide a suitable education to her child, D.

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The Ombudsman’s role and powers

2. 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)
3. We cannot investigate most complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
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 or continue an investigation if we decide any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
5. 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.

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How I considered this complaint

6. I considered information provided by Miss X and the Council’s replies to her.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. In July 2024 Miss X asked the Council to assess D for an Education Health and Care Plan (EHC Plan). It completed its assessment, and issued a final EHC Plan in early February 2025. This is outside of the Regulation’s timescales.
9. Miss X was not happy with the EHC Plan. In particular, she disagreed that School Z was suitable for D. She appealed to the Tribunal. Miss X says that appeal has ended. She says the Council agreed to change the named placement to a specialist setting.
10. Miss X says D was out of education for around eight months. This period covered some time before the Council issued the EHC Plan and mostly after its issue.

Analysis

11. 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)
12. 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.
13. 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.
14. The delay in issuing the final EHC Plan is not significant enough to justify an investigation.
15. We cannot look at the education School Z provided before the Council issued the final EHC Plan.
16. 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).
17. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
18. The Council in reply to Miss X’s complaint said School Z was available and accessible. We are unlikely to find Miss X has been caused any significant injustice directly by Council fault because the period without education before the EHC Plan was issued is relatively short and the causation is not clear.

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Final decision

19. We will not investigate Miss X’s complaint because we cannot consider D’s lack of education during a Tribunal appeal. We will not investigate a delay in issuing an EHC Plan as the delay is not significant enough to justify an investigation. And any lack of education before the EHC Plan issue is not significant.

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Investigator's decision on behalf of the Ombudsman