Summary: Miss X complained about the Council’s failure to provide alternative education for her daughter when she was out of school. We will not investigate this complaint as the matters complained about are too closely linked to the appeal to the Special Educational Needs and Disabilities Tribunal.

The complaint

1. Miss X says the Council failed to arrange Alternative provision when her daughter (Y) could not attend school.
2. The Council’s failure, Miss X says, affected Y’s education, well-being and social development. It also caused Miss X distress, financial loss and worsening of mental health.

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The Ombudsman’s role and powers

3. 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)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, 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to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded.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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What I have and have not investigated

10. Miss X came to us at the beginning of November 2025. As pointed out in paragraph four we would normally only investigate events which happened within 12 months from when the complainant came to us. Miss X said that she had not complained about Y’s education before as there were people who tried to help and she was hoping there would be a resolution to Y’s difficulties with accessing education. However sympathetic I am to Miss X’s circumstances, these reasons would not be sufficient to justify extending my investigation. I have, therefore, not investigated anything that happened before November 2024.

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How I considered this complaint

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

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What I found

Law and guidance

13. 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. 
14. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 

15. 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.
16. 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. (Children and Families Act 2014 Section 51(2))

What happened

17. In August 2024 the Council issued an Education, Health and Care (EHC) Plan for Y. The Council named a specific mainstream primary school in Section I.
18. Two months later Miss X appealed Sections B, F and I of Y’s EHC Plan. She said:
• Section B did not sufficiently cover main factors affecting Y’s educational engagement. The Council failed to carry out Speech and Language Therapy and Occupational Therapy assessments;
• Section F lacked clarity and was not specific;
• mainstream schools could not meet Y’s needs. Y was out of school, Miss X said, since April 2024. Miss X asked the SEND Tribunal to name a special residential school in Section I of Y’s EHC Plan.
19. At the end of July 2025 Miss X complained about the lack of Alternative provision for Y in the last 18 months. After completing the Council’s complaint process Miss X came to us at the beginning of November 2025.
20. Miss X told me the appeal had not yet been concluded as there was no school which would offer Y a place.

Analysis

21. 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 Miss X’s appeal. Besides, the courts have found we cannot investigate any matter closely linked to the matters under appeal.
22. Miss X had the right to appeal Sections B, F and I of Y’s EHC Plan from the beginning of August 2024, when the Council issued the plan. She lodged her appeal against Sections B, F and I in October 2024.

Non-delivery of special educational provision

23. As explained in paragraph six we normally would not investigate any issues which are closely linked to the appealed matters.
24. Miss X considered Sections B and F of Y’s EHC Plan inadequate. Section B, Miss X said, failed to describe Y’s needs accurately. Section F failed to specify all the provision needed to address Y’s special educational needs. Besides Miss X considered it was necessary to carry out further assessments for Y’s speech and language as well as physical and sensory needs. Thus the extent of the appeal was not determined in the application for appeal.
25. Because of the extent of Miss X’s challenge to Sections B and F and its open-ended nature, looking at the 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 jurisdiction.

Alternative provision

26. 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.
27. 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.
28. Miss X had the right to appeal Y’s EHC Plan from August 2024. She appealed Sections B, F and I in October 2024. We cannot, therefore, look at the Council’s actions or failure to act regarding Alternative provision for Y from the date Y’s final EHC Plan was issued.

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Decision

29. I will not investigate this complaint as the matters complained about are too closely linked to the appeal to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman