Summary: We will not investigate this complaint about the Council’s education provision for Mrs X’s child while they were out of school. There is insufficient evidence of fault in the Council’s initial decision to justify an investigation. In addition, we cannot consider later parts of the complaint because Mrs X had a right of appeal to a Tribunal, to challenge the Council’s decisions. And it would have been reasonable for her to use her right of appeal.

The complaint

1. Mrs X said the Council failed to meet its duty to make suitable alternative educational provision (AP) for her child, Y, from January 2025 until July 2025. Mrs X said this also included a failure to secure the special education provision (SEP) in Y’s Education, Health, and Care (EHC) Plan. Mrs X said this adversely affected Y’s developmental growth and mental health.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. 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 there is not enough evidence of fault to justify. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
4. 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)
5. 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.

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How I considered this complaint

6. I considered information provided by the complainant and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Y is a child who has an Education, Health, and Care (EHC) Plan. Mrs X complained the Council did not do enough to secure AP for Y or their SEP, during a period they did not go to the school the Council named in Y’s EHC Plan. Mrs X said Y could not attend a mainstream school, because the environment was unsuitable.
9. The council has a duty to make sure the child, or young person receives the SEP set out in section F of an EHC Plan.
10. In February 2025, Mrs X requested AP for Y. The evidence shows the Council considered her request and concluded its duties under section 19 of the Education Act 1996 were not engaged because the school could meet Y’s needs. The Council discussed Mrs X’s concerns with her and made a referral for alternative therapeutic education.
11. Given these actions are appropriate, we will not investigate the period between February and May 2025, because it is unlikely we would find fault in the Council’s approach then. The Council also made arrangements to secure the SEP, in Y’s EHC Plan, that was not schools based provision.
12. In May 2025, the Council issued a final EHC Plan for Y and provided Mrs X with information about her right of appeal. Mrs X did not appeal that decision.
13. We will not investigate the period after May 2025, because 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. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.
14. 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 where there is an appeal right. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person.
15. It would have been reasonable for Mrs X to appeal the Council’s decision because only the Council or the Tribunal can name an alternative school in an EHC Plan; we cannot.

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Final decision

16. We will not investigate this complaint because there is insufficient evidence of fault in the Council’s earlier decision, and parts of the complaint concern matters Mrs X could reasonably have used an appeal right to a Tribunal.

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Investigator's decision on behalf of the Ombudsman