Summary: We will not investigate this complaint about the education the Council provided because it has offered a suitable remedy and it is reasonable for the complainant to use her right to appeal to the Tribunal.

The complaint

1. Ms X complains the Council:
• Failed to provide her son with a suitable education when he could no longer attend school;
• Failed to adhere to statutory timescales when finalising her son’s Education, Health and Care (EHC) Plan;
• Failed to implement the provision as outlined in the final EHC Plan;
• Delayed responding to her complaints; and
• Incorrectly stated in a letter to her that tuition was offered in November 2024.
2. Ms X says the Council has caused a loss in education, avoidable distress and the process has been expensive because she instructed solicitors to act on her behalf.
3. Ms X requests the Council provide appropriate alternative provision, pay for her solicitor’s fees and apologise.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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:

• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

6. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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.
8. 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)
9. 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.
10. 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

11. I considered information provided by Ms X and the Council.
12. I considered the Ombudsman’s Assessment Code.

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My assessment

Alternative provision

13. If we were to investigate this aspect of Ms X’s complaint, the period we would investigate would be from 14 October 2024, when the Council was notified the child was not attending school, and 7 February 2025, when the Council finalised the EHC Plan. This equates to approximately one term. Our Guidance on Remedies recommends a remedy payment of between £900 and £2400 per term to acknowledge the impact of a loss of educational provision. In this case, the Council has offered Ms X more than we could achieve for her. Because we cannot achieve anything more for Ms X, we will not be investigating this aspect of Ms X’s complaint.

EHC Plan

14. The Council assessed the child’s education, health and care needs and finalised the EHC Plan on 7 February 2025. There was a delay of 11 weeks. The Council has apologised for this and offered a remedy of £300. This is an appropriate remedy and there is nothing more that can be achieved with an investigation. We will not investigate this aspect of Ms X’s complaint.
15. Ms X complains the Council has not provided her child with the provision as outlined in Section F of the EHC Plan. We will not investigate this aspect of the complaint because of the reasons explained in paragraphs 8 and 9 above and it is reasonable for Ms X to use her right to appeal to the Tribunal.

Complaint handling

16. Ms X complains of delays in responding to her complaint. I acknowledge this was frustrating but it is not a good use of public resources to investigate complaints about complaint handling when we are not looking at the substantive issue. We will not investigate this aspect of Ms X’s complaint.

Incorrect information in a letter from Council

17. Ms X says the Council wrote to her to say tuition was offered in November 2024 when it was offered on 2 December 2024 by the school. Ms X says the Council has not provided an explanation for this or apologised. I acknowledge Ms X’s annoyance at this, but the injustice is not significant enough to warrant an investigation.

Reimbursement of legal fees

18. Ms X requested reimbursement of legal fees she incurred. We cannot recommend the Council reimburse legal fees.

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Final decision

19. We will not investigate Ms X’s complaint because we cannot achieve the outcomes she wants and it is reasonable for her to use her right to appeal to the SEND Tribunal with regards to her child’s education.

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Investigator's decision on behalf of the Ombudsman