Summary: Miss X complained that the Council named a school in her son’s Education, Health and Care Plan, which could not meet his needs, and it failed to ensure the agreed alternative education was provided. We are discontinuing our investigation because Miss X had an available alternative remedy by means of an appeal to the Special Educational Needs and Disability Tribunal if unhappy with the named placement. Therefore, we are closing the complaint.

The complaint

1. Miss X complained that the Council failed to provide the required provision set out in her child’s (Y’s) Education, Health and Care (EHC) Plan after it was finalised in February 2024.
2. The Council also failed to provide suitable full time alternative education. It increased the provision to six hours per week, but Miss X says that this was insufficient to meet Y’s needs.
3. As a result, Y has missed out on suitable education, to Y’s educational detriment, and Miss X has been caused avoidable distress and time and trouble.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these.
5. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended).
6. The First-tier Tribunal (Special Educational Needs and Disability-SEND) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
7. We also will not normally investigate a complaint whereby the complainant had an alternative remedy by means of appeal to the SEND Tribunal unless we consider that there are reasons why the complainant could not resort to this remedy.
8. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended).

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What I have and have not investigated

9. I am not investigating the complaint further for the reasons set out in this statement.

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How I considered this complaint

10. I considered evidence provided by Miss X and by the Council as well as relevant law, policy and guidance. I issued a draft decision statement to the Council and to Miss X. I have taken into account any further comments before I reached a final decision.

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What I found

11. Y had not attended his allocated school, School Z (a mainstream primary school), since 2022. Miss X applied for an EHC needs assessment. The Council issued a final EHC Plan in February 2024, naming School Z even though it was recognised that the school could not meet Y’s needs. Miss X says that she was asking for a particular special school (School C) but there were no places available.
12. Miss X says that she did not appeal the EHC Plan to the SEND Tribunal in February 2024 because the Council delayed in providing the required mediation certificate. A parent/carer cannot appeal until in receipt of this certificate. Miss X says that, because the Council did not provide the required certificate, she was out of time to appeal.
13. The Council arranged for School Z to provide alternative education. But this did not start until April 2024, and Miss X was also unhappy about the amount of tuition being provided. The Council issued an amended final EHC Plan in April 2024, naming School Z but setting out details of the alternative education. Miss X did not appeal at this stage.
14. The Council issued a further amended final EHC Plan in August 2024, still naming School Z. The Council agreed that Y required a placement at School C. But there were still no available places.
15. In February 2025, the Council issued an amended final EHC Plan. This was the fourth final EHC Plan. Again, the Council named School Z, also setting out the details of the alternative education to be provided. The Council agreed Y required a specialist placement, but it was waiting for a place to become available at School C.
16. Miss X has appealed this final EHC Plan and now Y has a placement at School C.

Findings

17. In February 2024, the Council named School Z as the appropriate school placement even though Y had not attended since 2022. Miss X did not appeal the EHC Plan because she did not receive the mediation certificate. I appreciate that this would have played a part in Miss X’s decision not to appeal. But it is still possible to appeal to the SEND Tribunal even if out of time. But a parent/carer would have to provide adequate reasons for a late appeal.
18. In April 2024, the Council issued an amended EHC Plan, and again in August 2024. Miss X did not appeal these EHC Plans.
19. I recognise that Y has been without appropriate education since the issue of the first EHC Plan, and out of school before then. But the main outcome sought by Miss X was for a specialist school (School C) to be named which would meet Y’s needs.
20. My view is that it was reasonable for Miss X to have exercised her right of appeal to the SEND Tribunal, if not in February 2024, but subsequently in April and August 2024. This is because it was clear to her that the named school was unsuitable and did not meet Y’s needs. Therefore, on that basis, I consider that it is not appropriate to pursue the complaint because Miss X had a suitable, alternative remedy, and I am discontinuing our involvement.
21. Any complaints about the alternative education provided are subsidiary matters to the main issue about school placement for which Miss X had an appeal right. And, as the main complaint is outside our jurisdiction to investigate, we could not investigate the subsidiary matters.

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Decision

22. I have decided to discontinue our investigation for the reasons provided. I am therefore closing the complaint.

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Investigator's decision on behalf of the Ombudsman