Summary: Mrs X complained about the Council’s failure to provide alternative education for her child when they were out of school. Mrs X also complained her child was not receiving the special educational provision in their Education, Health and Care Plan. We have not investigated this complaint as the matters complained about were either part of Mrs X’s appeal to the Special Educational Needs and Disabilities Tribunal or were too closely linked to the appeal.

The complaint

1. Mrs X complains about the Council’s failure to provide alternative education to her child when they could no longer attend school and failure to provide the special educational provision in their Education, Health and Care (EHC) Plan.
2. Mrs X said this has meant her child missed out on a significant amount of education and caused their mental health to deteriorate.

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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. In determining whether to initiate, continue or discontinue an investigation we act in accordance with our own discretion, subject to the provisions of sections 24A, 26 and 26D of the Local Government Act 1974. (Local Government Act 1974, section 24A(6), as amended)
5. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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)
7. 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.
8. 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to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded.
9. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).

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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

Law and guidance

12. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the SEND Tribunal in this decision statement.
13. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued. (Children and Families Act 2014 Section 51(2))

What happened

14. Mrs X’s child, Y, has special educational needs. In December 2023, the Council issued Y with an EHC Plan. Most of the special educational provision was school based. At this time Y attended a mainstream school.
15. In September 2024, Y started at a mainstream secondary school.
16. In November 2024, the Council held an annual review of Y’s EHC Plan. The notes from the review showed the Council decided to maintain the EHC Plan. The Council issued Mrs X with a decision on 28 November 2024, telling her the Council was maintaining the EHC Plan. This decision gave her appeal rights to the SEND Tribunal.
17. In November 2024, Y’s attendance at school started to fall and by early December 2024, Y stopped attending school altogether.
18. Mrs X appealed the Council’s decision to maintain Y’s EHC Plan to the SEND Tribunal in late January 2025. Mrs X’s appeal form showed she disagreed with sections B, F and I of the Plan. Mrs X wanted Y to attend a specialist school placement as she did not believe mainstream was suitable for Y. Mrs X also said the special educational provision listed in section F of the Plan was not specified or quantified and would need to be updated once Y’s medical diagnosis was updated. Mrs X had an appeal hearing date scheduled for early 2026.
19. Ms X made a formal complaint to the Council in May 2025. Mrs X complained the Council had not put in place any education for Y since they had been out of school. The Council responded shortly after and told Mrs X as she had appealed to the SEND Tribunal it was not appropriate to address this through the complaints procedure.
20. Ms X asked the Council to consider her complaint further in mid-May 2025. Ms X said the Council remained responsible to provide Y’s provision in their EHC Plan and this falls outside of the SEND Tribunal.
21. The Council provided its final response to Mrs X in June 2025. The Council said it believed Y’s current school could provide education and provision for Y.
22. Mrs X remained dissatisfied and complained to the Ombudsman.

Analysis

23. We generally would not investigate a complaint when the issues complained of are matters which could have been appealed to the SEND Tribunal. We have no discretion to investigate any issues which were part of Mrs X’s appeal. Besides, the courts have found we cannot investigate any matter closely linked to the matters under appeal.
24. Mrs X had the right to appeal Sections B, F and I of Y’s EHC Plan from 28 November 2024, when the Council issued its decision to maintain the Plan. She lodged her appeal against Sections B, F and I in January 2025.

Alternative provision

25. The courts explained an appeal against section I of a child’s EHC Plan refers to a council’s decision to name an unsuitable school or its failure to act to name a suitable school. The consequence of such decision might be that the council fails for a period of time to discharge its duty to provide alternative education. The courts clarified the Ombudsman had no jurisdiction to investigate the consequences of a decision if investigation of the decision itself was excluded.
26. If a person disagrees with the placement named in an EHC Plan we would generally not remedy a loss of education after the date the right of appeal was engaged.
27. Mrs X had the right to appeal from 28 November 2024. Y’s attendance at school was falling in November 2024 and stopped completely from early December 2024. Because Mrs X has appealed to the SEND Tribunal and part of her appeal is about the suitability of the school placement, i.e. she believes it is unsuitable and the Council believes it is suitable, we cannot look at the Council’s actions or failure to act regarding alternative provision for Y.

Non-delivery of special educational provision

28. As explained above we normally would not investigate any issues which are closely linked to the appealed matters.
29. Mrs X considered Sections B and F of Y’s EHC Plan inadequate. Section B, Mrs X said, failed to describe Y’s needs accurately. Section F failed to specify provision needed to address Y’s special educational needs and failed to provide provision which was specified and quantified.
30. The Council’s view was that Y could receive all of their provision in school and that there were no reasons Y could not attend school. Ultimately it will be up to the Tribunal to decide what type of school is suitable for Y and what should be included in sections B and F of their EHC Plan. Because of the extent of Mrs X’s challenge to Sections B and F and its open-ended nature, looking at non-delivery of special educational provision for Y would be too closely linked to the appeal issues. Our investigation would be at risk of interfering with the SEND Tribunal’s jurisdiction.

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Decision

31. I will not investigate this complaint as some matters complained about are either too closely linked to the appeal to the SEND Tribunal or could have been appealed. I cannot investigate the issues which have been appealed to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman