Summary: We will not investigate Miss X’s complaint about a Council’s decision not to provider alternative education as it is unlikely we would find fault in its decision. We cannot investigate if an Education Health and Care plan meets a child’s needs as she appealed to the Tribunal.

The complaint

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

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The Ombudsman’s role and powers

2. 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.
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 of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

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

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My assessment

7. Miss X requested an Education Health and Care Plan (EHC Plan) needs assessment in January 2025. The Council agreed. It completed the assessment and issued a final EHC Plan in September 2025. It named B’s existing School as suitable. Miss X disagreed that the EHC Plan met B’s needs and appealed to the Tribunal. This means we cannot investigate whether the Council’s assessment was adequate or whether the provision set out in the EHC Plan is suitable.
8. In September 2025, before the Council issued the EHC Plan, Miss X complained to the Council that B’s school had not provided the support set out in a draft EHC Plan. It had no legal requirement to do so. We are unlikely to find fault in the Council not ensuring it do so.
9. In mid October 2025 Miss X said B was no longer able to attend the named School. She said the Council should provide alternative provision in compliance with section 19. The Council in its stage two reply to her complaint set out what action it and the School had taken. And why it believed it did not owe a section 19 duty. It said there was a School available and accessible. Miss X disagrees.
10. Section 19 of the Education Act 1996 says that the Council must arrange suitable alternative educational provision when it finds that a child is unable to attend school because of a permanent exclusion, an illness, or for any other reason which make the school inaccessible to the child. The alternative educational provision must be suitable to the child’s age, ability and aptitude, and any special educational needs they have.
11. The Courts decided in (R(R) v Kent County Council [2007] EWHC 2135 (Admin)), the test for whether a section 19 duty is owed is whether the education offered was “reasonably available and accessible” to the child, despite the parents’ objections.
12. In this case the Council has demonstrated it considered the relevant facts and events. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether the complainant disagrees with the decision the organisation made.
13. I have considered the steps the Council took to consider if it owed a section 19 duty. It is unlikely we would find fault in how it took the decision and therefore we could not question whether its decision was right or wrong.

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Final decision

14. We will not investigate Miss X’s complaint because we are unlikely to find fault in the Council’s decision not to provide alternative education provision. And we cannot investigate if an EHC Plan meets a child’s needs as a Tribunal is considering this.

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Investigator's decision on behalf of the Ombudsman