Summary: Miss X complained the Council failed to provide suitable alternative education for her son while he was unable to attend school. She says the Council’s actions have caused avoidable distress to herself and her son and has negatively impacted his mental and physical health. We cannot investigate this complaint because Miss X has used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability). This places the substantive matters outside our jurisdiction.

The complaint

1. Miss X complained the Council failed to provide suitable alternative education for her son while he was unable to attend school. She says the Council’s actions have caused avoidable distress to herself and her son and has negatively impacted his mental and physical health. Miss X would like the Council to review its decision regarding the educational setting for her son and to look into alternative placements.

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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. 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.
5. 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)
6. 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). 
7. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)

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How I considered this complaint

8. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
9. Miss X and the Council had an opportunity to comment on a draft of this decision. I considered any comments before making a final decision.

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What I found

Education, Health and Care Plans

10. A child or young person with special educational needs (SEN) may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections, including: 
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement.  
11. We cannot direct changes to the sections about a child or young person’s needs, education, or the name of the educational placement. Only the Tribunal or the council can do this. 
12. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s SEN, the special educational provision specified, and the school or placement specified in their EHC Plan.

Alternative education provision

13. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. (Education Act 1996, section 19). We refer to this as Section 19 or alternative education provision.

What happened

14. This chronology includes key events in this case and does not cover everything that happened.
15. Miss X’s son, Y, received a final EHC Plan in February 2024 which named the primary school that Y attended at the time as his educational placement. As Y was due to transition to secondary school in September 2024, the EHC Plan named a mainstream secondary school, School A, as the placement from 1st September 2024.
16. Miss X told the Council she would like Y to attend a specialist school, rather than a mainstream school. She said Y had a diagnosis of school-based anxiety and she was worried about him attending a mainstream secondary school.
17. In March 2024, Miss X submitted an appeal to the Tribunal to appeal the educational placement named in Y’s EHC Plan.
18. The Tribunal hearing took place in August 2024. The Tribunal decided School A was able to deliver the required provision for Y and decided it should be named as the educational placement with effect from September 2024.
19. In October 2024, Miss X provided the Council with a letter from Y’s doctor. The letter stated Y had increasing problems with school-based anxiety, which caused physical symptoms and led to Y refusing to leave the house.
20. Miss X contacted the Council in November 2024. She said Y was not coping with the special education unit at School A and that his anxiety had escalated.
21. Miss X complained to the Council on 19 November 2024. She said Y was experiencing anxiety and panic attacks which meant he was unable to attend school. Miss X said this was affecting Y’s mental and physical wellbeing to the point he found it difficult to leave the house. Miss X said the Council had a duty under Section 19 to secure alternative education for Y while he was unable to attend school, as well as a duty to ensure the provision in the EHC Plan continued to be provided.
22. The Council provided its complaint response on 27 November 2024. It acknowledged Miss X’s concerns but stated the Tribunal had ruled that School A should be named in Y’s EHC Plan. The Council said School A had marked Y’s absence as unauthorised, and said the Council had not received any evidence that Y was unable to attend. The Council said its services could support re-integration into school and could look at strategies with the school to support Y’s specific needs.
23. Miss X remained dissatisfied with the Council’s response and brought her complaint to us; she said the school environment was making Y’s anxiety worse. Miss X also disagreed with the school marking Y’s absence as unauthorised; she said she had notified School A that Y’s absence was due to his mental health. Miss X said School A’s communication was poor and that she had asked for a review of the EHC Plan because she considered Y was placed in the wrong educational environment.

Analysis

24. I acknowledge Miss X’s comments regarding her disagreement with School A marking Y’s absence as unauthorised, and her dissatisfaction with its communication. However, these complaints relate to the actions of the school rather than the Council. As referenced in paragraph seven above, we cannot investigate most complaints about what happens in schools. As a result, I cannot investigate these points.
25. We cannot investigate Miss X’s complaint that the Council failed to provide suitable alternative education for Y while he was unable to attend school.
26. This is because the evidence shows Miss X used her right of appeal to the Tribunal against the content of the EHC Plan. Whether School A is suitable for Y and can make appropriate provision is a matter which the Tribunal considered.
27. 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).
28. This means that if a pupil is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, 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.
29. The reason for Y’s non-attendance at school is linked to or is a consequence of Miss X’s disagreement about the educational placement named in the EHC Plan. This is because:
• Miss X says the school environment is making Y’s anxiety worse, with the trauma this has caused resulting in him being unable to attend.
• Miss X says School A is the wrong environment for Y; she has requested a further review of the Council’s decision regarding the educational placement.
30. Having considered the above caselaw, we cannot investigate the provision, or lack of it, made for Y, and can take no view on whether the Section 19 duty is engaged. As a result, we cannot investigate Miss X’s complaint.

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Decision

31. We cannot investigate Miss X’s complaint because her appeal to the Tribunal places the substantive matters outside our jurisdiction.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman