Summary: We cannot investigate Ms X’s complaint about the Council’s failure to provide a full-time education for her son, Y, when he was out of school for health reasons linked to his special educational needs, nor that it did not deliver the provision in his Education Health and Care Plan whilst he was out of school. This is because Ms X appealed the Council’s decision that the school place was suitable for Y and the missed provision could not be provided outside a school setting.

The complaint

1. Ms X complained the Council did not provide a full-time education for her son, Y, when he was not able to attend the school named in his Education, Health and Care Plan (EHC Plan) from November 2022 onwards. She also complained the Council failed to deliver the provision in section F of his EHC plan.
2. Ms X said this affected Y’s education and wellbeing, and also affected her own wellbeing. She wants the Council to pay compensation for the loss of education.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. The courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
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 SEND Tribunal in this decision statement.

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How I considered this complaint

6. I considered information provided by Ms X.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

What happened

8. The Council issued a final Education Health and Care Plan (EHC Plan) for Y in May 2022, which named school 1, an independent special school, from September 2022. Y did not settle well in school 1 and did not attend school from November 2022.
9. At a meeting in early November 2022 school 1 agreed to offer outreach support, which it confirmed later that month. In early December 2022, an annual review of Y’s EHC Plan was arranged, at which point Y’s attendance was 54%. Following the annual review, the Council decided to maintain Y’s EHC Plan without amendment. Ms X had a right of appeal, which she exercised. She appealed section F and section I. She said she wanted education otherwise than in school (EOTAS).
10. In its complaint responses in 2022 and 2023, the Council:
• confirmed its view that school 1 remained suitable for Y and that Y could return with transition support. It said school 1 had confirmed it could meet Y’s needs if he attended and was committed to reintegration;
• said his non-attendance was partly for health reasons and partly as a result of Ms X’s parental preference for EOTAS;
• confirmed that all the support in section F had been arranged and could be delivered if Y attended school 1. It said most of the support could not be delivered outside of a school environment; and
• set out support school 1 had offered to assist Y to return to school and provide some of the support in section F. Ms X did not agree the support offered was appropriate and declined it.
11. The SEND Tribunal decision in May 2024 stated school 1 offered a reintegration package in February 2023, but this was ultimately not successful and school 1 ended the placement in July 2023.

My assessment

12. Where a Council is aware a child is not able to attend any school for health reasons not connected to their special educational needs (SEN), it has a duty to provide an alternative education for them. Where the non-attendance is related to a child’s SEN and the placement named in their EHC Plan, the Council should call an emergency review and decide whether to amend or maintain the EHC Plan. The parents then have a right of appeal to the SEND Tribunal in relation to the placement named and the content of the EHC Plan.
13. In this case, the Council took the action we would expect to explore the reasons for Y’s non-attendance, including arranging a review of Y’s EHC Plan. Having done this, the Council’s view was that Y could attend school 1 with the support offered, that school 1 remained a suitable school for him and that the provision in section F of Y’s EHC Plan was in place and would be delivered by school 1 when Y returned. Ms X disagreed and she appealed to the SEND Tribunal. Her concerns about the placement named and the content of Y’s EHC Plan have been considered by the SEND Tribunal.
14. Ms X has already sought a remedy from the SEND Tribunal. In such cases, the law says we cannot investigate the period from the date the right of appeal arose to the date of the decision, even where the appeal will not provide a full remedy for the matters complained about. The setting and provision were disputed and determined by the Tribunal. Therefore, we will not consider this complaint further.
15. We could consider the short period between November 2022 when Y stopped attending and the date of the decision to maintain his EHC Plan following the annual review. However, it is unlikely we would find any injustice caused to Ms X and Y before the appeal right started as they would not accept the provision in the existing EHC Plan. Therefore, we will not investigate.

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Final decision

16. We cannot investigate Ms X’s complaint because she has appealed to the SEND Tribunal. We will not investigate the period before her appeal as it is unlikely we would find she has been caused any injustice because of any Council fault.

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Investigator's decision on behalf of the Ombudsman