Summary: We will not investigate this complaint about the Council failing to provide alternative provision for Miss X’s child because she has the right of appeal to the Special Educational Needs and Disability Tribunal, and it would have been reasonable for her to use this right.

The complaint

1. Miss X complains the Council failed to provide her child with a safe and inclusive school placement. She complains:
• Her child has had no alternative provision since July 2025;
• The Council failed to address safeguarding matters properly;
• She is unhappy with her child’s exclusion from school;
• The Council did not provide information requested; and
• There was poor complaint handling by the Council.

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The Ombudsman’s role and powers

2. 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).
3. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs.
4. 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)
5. 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.
6. 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.
7. 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))
8. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
9. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.

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How I considered this complaint

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

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My assessment

12. Miss X was unhappy with the school named in her child’s Education, Health and Care Plan (EHC Plan) as she felt it could not meet her child’s needs. This carried a right to appeal and it would be reasonable for Miss X to use this appeal right, so we will not investigate.
13. Miss X’s child was out of school from July 2025 due to unmet needs and Miss X’s concerns around discrimination and safeguarding. However as non-attendance is linked to the disagreement with the named placement we cannot investigate the complaint about a lack of alternative provision.
14. Miss X complained to the school about various matters including racist comments aimed at her child. The Council considered the response from the school regarding the safeguarding and delivery of the EHC Plan, which was not upheld. It referred Miss X to the Local Authority Designated Officer (LADO) which was the appropriate person to deal with her concerns as the officer responsible for managing safeguarding allegations. It remains open for Miss X to ask the LADO for the outcome of her referral.
15. The informal two-day exclusion of Miss X’s son is a school matter so we cannot investigate this.
16. Any failure of the Council to provide information is better dealt with by the Information Commissioner's Office.
17. We will not investigate the Council’s complaint handling as it is not a good use of public resources to investigate complaints about complaint procedures if we are unable to deal with the substantive issue.

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Final decision

18. We will not investigate Miss X’s complaint about alternative provison for her child as she has the right to appeal to the Special Educational Needs and Disability Tribunal.

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Investigator's decision on behalf of the Ombudsman