Summary: We have completed our investigation into how the Council handled Mrs X’s child’s education when they were unable to attend school. This is because we find no fault with the way the Council made its decisions.

The complaint

1. Mrs X complained about the way the Council handled her child’s education. Specifically, she complained the Council failed to provide:
1. her child’s special educational provision;
2. suitable alternative provision while her child was unable to attend school; and,
3. a suitable fulltime education.
2. Mrs X said her child has not had a suitable education. Mrs X said she has had to care for her child full time when they should have been in education. She said it has affected her and her child’s physical and mental health, and has significantly impacted her marriage. She said it has caused unnecessary and avoidable distress and frustration.

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The Ombudsman’s role and powers

3. 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)
4. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(1), as amended)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
7. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in the child’s education, health and care (EHC) plan.
8. 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.
9. There is a right of appeal to the Tribunal for various reasons, including a council’s:

• description of a child or young person’s special educational needs, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC plan;
• amendment to these elements of an EHC plan; and,
• decision not to amend an EHC plan following a review or reassessment.

10. 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)
11. 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 the EHC plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
12. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded.

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What I have and have not investigated

October 2024 to January 2025

13. Mrs X complained about the Council’s provision of her child B’s special educational provision from October 2024 (when they stopped attending school) onwards.
14. As I have said above, if a child is not attending school, and we decide the reason for non-attendance is linked to 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.
15. In this case, Mrs X complained the school could not meet B’s needs so B was not attending school. The school was named on B’s EHC plan.
16. I find the reason B was not attending school is linked to Mrs X’s disagreement with the school named in B’s EHC plan. For this reason, there are limits to what I can investigate.
17. As I have said above, the period we cannot investigate starts from the date the appealable decision is made and given to the parent. In this case, the Council issued B’s EHC plan in January 2025. This gave Mrs X the right to appeal the plan. Therefore, I cannot investigate special educational provision or alternative provision after January 2025.
18. I have therefore investigated the period from October 2024 (when B stopped attending school) to January 2025 (when Mrs X got appeal rights).

From February 2025 onwards

19. Mrs X said she wanted to complain about issues after January 2025.
20. As I have set out above, the law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply.
21. In this case, the Council sent its final complaint response in February 2025. Therefore, I find the Council has not had an opportunity to investigate or reply to complaints about what happened after January 2025. For this reason, any complaint about events after January 2025 is premature. Mrs X would need to make a fresh complaint to the Council about this.

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How I considered this complaint

22. I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. I considered the relevant legislation and statutory guidance, set out below.
23. Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments received before I reached a final decision.

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What I found

What should have happened

Special educational provision

24. A child or young person with special educational needs may have an education, health and care (EHC) plan. This document sets out the child’s needs and what arrangements should be made to meet them.
25. The council has a duty to make sure the child or young person receives the special educational provision set out in their EHC plan (Section 42 Children and Families Act).
26. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision for every pupil with an EHC plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

Alternative educational provision

27. 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.
28. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)

What happened

29. Mrs X’s child, B, had an education, health and care (EHC) plan which said they should attend a certain school. In October 2024, Mrs X told the Council that B had stopped attending school for medical reasons.
30. In November, there was a review of B’s EHC plan. At the review, the school said it could meet B’s needs. The Council decided it would not change B’s EHC plan to make different provision for B.
31. Mrs X complained.
32. The Council said the school could provide B’s EHC provision and education. The Council said the school offered alternative provision, but B had not engaged. It said the education offered by the school could meet B’s needs, so the Council did not have a duty to provide alternative provision.
33. In January, the Council issued B’s EHC plan.

Analysis

Special educational provision

34. Mrs X complained the Council failed to provide her child’s special educational provision (part a of the complaint).
35. Mrs X said after her child, B, stopped attending school they did not have any special educational provision at all. She said the Council therefore failed to deliver everything in B’s EHC plan.
36. When Mrs X told the Council B would not be attending school, the Council contacted the school. The Council said the school reassured the Council it could meet B’s needs. The Council visited the school twice (October and November) to monitor provision and it spoke to the head teacher. The Council said it was satisfied B’s provision was in place.
37. I find the Council acted quickly to investigate and act on Mrs X’s report that B would not be attending school and was therefore getting no special educational provision. The Council satisfied itself that the school was able to provide the provision in B’s EHC plan. I find the Council made this decision without fault, and was entitled to make this decision. I therefore cannot challenge the outcome of the Council’s decision.
38. For this reason, I find no fault.

Alternative provision

39. Mrs X complained the Council failed to provide suitable alternative provision while B was unable to attend school (part b of the complaint).
40. Councils are only under an obligation to consider if they should provide alternative educational provision if the school is not available or accessible to the child.
41. In this case, the Council maintained oversight of the school’s offer of education. The Council communicated with the school and considered its own duties. The school told the Council it could meet B’s need.
42. The Council decided the school’s provision was suitable for B’s age, ability, aptitude, and special educational needs, and was available and accessible to B. This was a decision the Council was entitled to make, and I find no fault in how the Council made that decision. For this reason, the Council did not have a duty to provide B with alternative education.
43. I therefore find no fault.

Suitable fulltime education

44. Mrs X complained the Council failed to provide B with a suitable fulltime education (part c of the complaint).
45. As I have found above, the Council decided a suitable fulltime education was available and accessible to B at school. For this reason, I do not find the Council at fault.

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Decision

46. I find no fault.

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Investigator's decision on behalf of the Ombudsman