Summary: We cannot investigate Ms X complaint about whether education provision is suitable for her child as she has appealed to the Tribunal.

The complaint

1. Ms X says the Council has failed to secure suitable education for her child, D since May 2024.

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The Ombudsman’s role and powers

2. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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)

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How I considered this complaint

4. I considered information provided by Ms X and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Ms X says her child, D, has special educational needs. The Council says it issued a final Education Health and Care Plan (EHC Plan) in September 2024. It says Ms X appealed this in December 2024 to the Tribunal. It says it issued an amended EHC Plan in March 2025. It says both named the same setting, School Y as suitable.
7. Ms X says School Y is not suitable. She says the stated provision is also not meeting D’s needs. She confirms she has appealed to the Tribunal. She says the final hearing is not until January 2026.
8. Ms X says the Council should provide s19 alternative education as she says the current provision is not acceptable. She says D is not getting her health needs met.

Analysis

9. We cannot investigate whether School Y, or the provision set out in the EHC Plan is suitable as Ms X has appealed to the Tribunal.
10. The courts established that if someone appeals 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 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 that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
13. We are unlikely to find fault in the Council’s decision D does not meet the threshold for s19 provision. It says School Y, is suitable. And we cannot investigate whether it is.
14. Any health needs is a complaint to be made to the relevant NHS body.

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Final decision

15. We will not investigate Ms X’s complaint because we cannot investigate if the provision set out in an EHC Plan, and on offer, is suitable as Ms X has appealed to the Tribunal.

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Investigator's decision on behalf of the Ombudsman