Summary: Mrs X complained her child remains out of education, and the Council has still failed to provide alternative provision, despite a previous investigation finding fault. We cannot investigate this complaint. This is because Mrs X used her right of appeal to the First-tier Tribunal (Special Educational Needs and Disability) and that takes it out of our jurisdiction to consider.

The complaint

1. Mrs X complains her child remained out of education, and the Council still failed to provide alternative provision, despite us finding fault in a previous investigation. Mrs X says this has continued to have a detrimental impact on the family and her child’s wellbeing and educational progress.

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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. 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.
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. 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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How I considered this complaint

6. I spoke to Mrs X. I considered Mrs X’s formal complaint and the outcome of a previous final decision we made on a separate complaint about earlier events. I also considered relevant law, policy and guidance.
7. Mrs 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

8. Mrs X previously complained to us in mid-2024 about her child’s lack of alternative provision when they could not attend school. Our investigation found the Council at fault. We recommended a remedy for the injustice caused. This remedy covered up until the date of the final decision in April 2025.
9. In April 2025, the Council issued a final Education, Health and Care (EHC) Plan for Mrs X’s child. Mrs X disagreed with the placement named and she used her right to appeal to the Tribunal.
10. In December 2025, Mrs X made a new complaint to the Council (and then us) as she said the Council still had not provided alternative provision for her child since.

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Analysis

11. The restrictions in Paragraphs 4 to 5 apply to Mrs X’s latest complaint. We cannot investigate a complaint if someone has appealed to the Tribunal about the same matter or matters too closely linked to the subject of appeal. 
12. 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 their EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
13. The period we cannot investigate starts from the date the appealable decision is made and given to the parents. If the parent 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.
14. Therefore, we have no discretion to consider Mrs X’s complaint.

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Decision

15. We cannot investigate Mrs X’s complaint. This is because she has used her right of appeal to the Tribunal and the law says we cannot investigate these matters.

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Investigator's decision on behalf of the Ombudsman