Summary: We will not investigate this complaint about the Council’s failure to make alternative and special educational provision for the complainant’s son. The complaint about the period before the Council issued an Education Health and Care (EHC) plan is late and there are no grounds for the Ombudsman to consider it now. Matters since the EHC plan was issued fall outside our jurisdiction by law.

The complaint

1. The complainant, who I will refer to as Mrs X, complains that the Council failed to make alternative provision for her son while he was unable to attend school, and failed to deliver the special educational provision set out in his Education Health and Care Plan.

Back to top

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 late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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)
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.
6. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been 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). 

Back to top

How I considered this complaint

7. I considered information provided by the complainant.
8. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

9. Mrs X says her has not attended school since December 2022. She says that between then and September 2024, the Council did not make educational provision for him. It is her contention that the Council’s duty to make alternative educational provision under Section 19 of the Education Act 1996 was engaged and that the Council failed to make the provision it was required to make.
10. The correspondence Mrs X has provided shows that the Council issued an EHC plan in June 2023. She says it unlawfully named the school where her son was on roll and which he could not attend. She believes that, in addition to the Section 19 duty, the Council was also required to secure the provision set out in the EHC plan.
11. In response to Mrs X’s complaint, the Council has said that her son had a place available to him at the school at which he was on roll, and that the school was able to reintegrate him and could meet his needs. On that basis, it said the Section 19 duty was not engaged.
12. The Ombudsman will not investigate Mrs X’s complaint. Her complaint regarding the period before the EHC plan was issued is late. Late complaints are when someone takes more than 12 months to complain to us. Mrs X did not come to the Ombudsman until October 2024, so her complaint is late and there are no grounds to consider it now.
13. We can take no view on whether it was lawful to name the school the Council named in the EHC plan, or about its suitability for Mrs X’s son. Mrs X used her right to appeal to the SEND Tribunal and, by law, this places the matter outside our jurisdiction.
14. Neither can we investigate whether the duties to make alternative and special educational provision applied once appeal rights were engaged by the issuing of the EHC plan. The courts have established that, if someone has appealed to the SEND 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 SEND Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207).
15. This means that if a child is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent’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. That is clearly the case here and the Ombudsman cannot intervene.

Back to top

Final decision

16. We will not investigate Mrs X’s complaint because part of it is late and we have no power to consider the rest.

Back to top

Investigator's decision on behalf of the Ombudsman