Summary: We will not investigate this complaint that the Council has failed to make alternative and special educational provision for the complainant’s child. This is because there is insufficient evidence of fault on the Council’s part, and the complainant has used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability).

The complaint

1. The complainant, Mrs X, complains that the Council has failed to make alternative educational provision for her daughter and secure the provision set out in her Education Health and Care (EHC) Plan while she has been unable to attend school.

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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 investigating. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
4. 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)
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 Tribunal in this decision statement.
6. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal…such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.

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How I considered this complaint

7. I considered information provided by the complainant.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. Mrs X says her child has been unable to attend school since May 2024 due to anxiety and mental health issues. She complains that the educational provision made for her child has been inadequate, and the Council has failed to discharge the duty to make appropriate alternative provision set out in Section 19 of the Education Act 1996.
10. Mrs X further complains that the Council has failed to make the provision set out in the EHC Plan.
11. In response to Mrs X’s complaint, the Council denies that the Section 19 duty is engaged. It says it has not been provided with the medical evidence which would be required to demonstrate that Mrs X’s child requires alternative provision. Rather, it supports the school’s efforts to work towards reintegration. It says it has secured the EHC provision, which the school is in a position to provide.
12. We will not investigate the Council’s actions in the period before the EHC Plan was issued. The matter turns on whether Mrs X’s child could attend school, which is not something we can determine. It is for the Council to decide whether the child’s circumstances engage the Section 19 duty, and it has made a decision which appears proportionate and defensible. In the absence of fault in the way it made that decision, the Ombudsman cannot criticise it, or intervene to substitute an alternative view.
13. Mrs X used her right to appeal to the Tribunal about the content of the EHC plan issued in March 2025. The law therefore prevents us from considering her complaint from that point onwards. 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.
14. This means that if a child is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, 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. That is the case here, and we cannot intervene. There is no discretion available to us.

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Final decision

15. We will not investigate Miss X’s complaint because there is insufficient evidence of fault on the Council’s part, and Mrs X has used her right to appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman