Summary: We cannot investigate whether the Council should have provided alternative education to Miss X’s child from the date it issued a notice saying it would not amend the Education Health and Care Plan. Any missed education before then is not of a long enough period to justify an investigation.

The complaint

1. Miss X says the Council has failed to provide her child, B, with a suitable education.

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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 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)
4. 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 fault has not caused injustice to the person who complained; or
• any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

5. I considered information provided by Miss X which includes the Council’s reply to her.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. The annual review of B’s Education Health and Care Plan (EHC Plan) was held in June 2025. The EHC Plan named School Z which B attended. In mid September 2025 Miss X says B suffered a sudden decrease in mental health and she withdrew B from School Z. She told the Council she would electively home educate B. She then told the Council this would be temporary until a new setting could be sorted.
8. The Council issued its decision following the June 2025 annual review, not to amend B’s EHC Plan, in early October 2025. Miss X appealed this decision to the Tribunal. She does not agree School Z is suitable.
9. Miss X asked the Council to provide alternative provision via s19 Education Act 1996. She requested a personal budget. She complained when this was not provided. And then to us.

Analysis

10. 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)
11. 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. This applies to this case.
12. 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. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
13. We cannot therefore investigate whether the Council should have provided alternative education from when it issued the appeal notice to the end of the Tribunal appeal.
14. We also cannot investigate any consultations or assessments of B in that period.
15. The period from when B was out of education until the appeal notice issue is less than three weeks. This is not significant enough injustice to justify an investigation.

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Final decision

16. We will not investigate Miss X’s complaint because we cannot investigate if the Council should have provided an education from early October 2025. And the missed education before then is not significant enough injustice to warrant an investigation.

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Investigator's decision on behalf of the Ombudsman