Summary: Mrs B complained the Council has failed to provide alternative education provision to her son, who I will refer to as C, and secure the provision set out in his Education, Health and Care (EHC) Plan since he stopped attending school. I have ended my investigation of Mrs B’s complaint. This is because Mrs B has appealed to a tribunal. We cannot investigate matters which are the subject of the appeal or are closely linked to the appeal.

The complaint

1. Mrs B complains the Council failed to provide alternative education provision to her son, who I will refer to as C, and secure the provision set out in his Education, Health and Care (EHC) Plan since November 2024, when he stopped attending school.
2. As a result of the Council’s actions, Mrs B says she has suffered distress and frustration; her health has been negatively impacted; and she has suffered a financial loss. She says C has also missed out on education and provision detailed in his EHC Plan.
3. Mrs B would like the Council to pay her a financial remedy for the missed education and provision, and for the impact on her and her family. She would also like the Council to ensure C receives a suitable education.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. 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)

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How I considered this complaint

7. I read Mrs B’s complaint and spoke to her about it on the phone.
8. I considered evidence provided by Mrs B and the Council as well as relevant law, policy and guidance.
9. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

EHC Plan

10. 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. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the Tribunal or the council can do this. 
11. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 

SEND Tribunal

12. There is a right of appeal to the Tribunal against certain council decisions. This includes the description of a child or young person’s SEN, the special educational provision specified, and the school or placement specified in their EHC Plan.

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What happened

13. This is a summary of events outlining key facts and it does not cover everything that has happened in this case.
14. The Council issued a final EHC Plan for C in October 2024.
15. In early November 2024, C stopped attending school. Mrs B wrote to the Council later that month to request alternative education provision for C. She told it C was unable to attend school due to school-based burnout and anxiety, and his needs are too complex for a mainstream school. Mrs B later complained to the Council about the lack of education and section F provision of C’s EHC Plan it had secured for him.
16. At the beginning of my investigation, Mrs B told me since bringing her complaint to us, she has appealed to the SEND Tribunal. She has appealed section B, F, and I of C’s EHC Plan, and has requested education other than at school (EOTAS) for C.

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Analysis

17. We cannot investigate how the Council delivered the content of C’s EHC Plan or how it considered its alternative education duties when C stopped attending school. This is because Mrs B has appealed the content of C’s EHC Plan to the SEND Tribunal.
18. 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)
19. 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.
20. C stopped attending school due to school-based burnout and anxiety. Mrs B disagrees with the named school in section I and says a mainstream school cannot meet C’s needs. The absence is related to the type of school placement, and the section F provision secured for C, or lack thereof. Mrs B has appealed these sections of the EHC Plan. As such, this is too closely linked to the appeal, and we therefore cannot investigate Mrs B’s complaint.

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Decision

21. I have ended my investigation of Mrs B’s complaint because she has appealed to the SEND Tribunal. We cannot investigate a complaint about the same matters, or matters closely linked to the appeal.

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Investigator's decision on behalf of the Ombudsman