Summary: Miss F complained the Council failed to provide alternative provision for her daughter. We have ended our investigation. This is because it is out of our jurisdiction as Miss F could appeal to the Special Educational Needs and Disabilities (SEND) Tribunal.

The complaint

1. Miss F complained the Council failed to provide alternative provision when her daughter, B, stopped attending school in 2022 due to her mental health needs. Miss F says this has caused B trauma and affected her mental health and ability to work.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. 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)
3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, 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 law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
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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What I have and have not investigated

7. I have ended our investigation into Miss F’s complaint. I explain why in the rest of this statement.

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How I considered this complaint

8. I considered evidence provided by Miss F and the Council as well as relevant law, policy and guidance.
9. Miss F 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

Relevant law and guidance

Special educational needs and disability

10. A child or young person with special educational needs may have an education, health and care (EHC) plan which sets out the child’s needs and what arrangements should be made to meet them. Councils are responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
11. Parents have a right of appeal to the Tribunal if they disagree with the SEN provision, the school named in their child's plan, or the fact that no school or other provider is named.
12. The Ombudsman cannot direct changes to the sections in the plan about the child’s needs, education, or the name of the educational placement. Only the Tribunal or the council can do this.

Alternative provision

13. Section 19 of the Education Act 1996 says that the council must arrange suitable alternative educational provision when it finds that a child of compulsory school age is unable to attend school because of a permanent exclusion, an illness, or for any other reason which makes the school inaccessible to the child. The alternative educational provision must be suitable to the child’s age, ability and aptitude, and any special educational needs they have. (Education Act 1996, section 19).

Participation in education for 16 to 18 year olds

14. Compulsory school age ends on the final Friday in the June of the academic year in which the child turns 16. The law requires that young people continue in education, employment or training until the age of 18. (The Education and Skills Act 2008)
15. Councils have a duty to make available support that will encourage, enable or assist young people to participate in education or training under. If a young person aged under 18 has dropped out, councils should support them to find an alternative place in education, training or employment with training.

The Ombudsman’s jurisdiction in relation to SEND

16. The courts have established that if someone has appealed to the SEND 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)
17. This means that if a young person is not attending school or college, 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.
18. 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.
19. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example the provision of alternative education when the reason the child or young person is not attending education is, in our view, not connected to or is not a consequence of a matter that was, or could have been, part of an appeal to the tribunal.
20. 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).

What happened

21. I have summarised the events. This is not meant to detail everything that happened.
22. Miss F’s daughter, B, has diagnoses of autism, ADHD, and anxiety and depression. In 2022 she stopped attending School X, a mainstream school, due to her mental health issues. Miss F requested an education, health and care (EHC) needs assessment. In December 2022 she appealed the Council’s decision not to issue an EHC plan. Miss F began privately funding maths and English tuition for B. During 2023, the Council and School X explored various measures to support B’s return to education, including referrals to alternative provision but these did not lead to a placement.
23. On 31 July 2023, the Council agreed to issue an EHC plan. The first EHC plan was issued on 14 November 2023 naming School X. Miss F appealed to the Tribunal. She wanted the plan to name specialist provision.
24. In early 2024, Miss F complained to the Council that B had received no education since July 2022 and requested alternative provision for her, but the Council declined to investigate due to the ongoing appeal.
25. A further EHC plan naming a post 16 setting (College 1) was issued in April 2024. Miss F again appealed to the Tribunal for specialist provision. The Tribunal consolidated the two appeals.
26. Miss F complained to the Council again in June 2024 that B was out of education and School X and the Council had not provided alternative provision.
27. The Council agreed to amend the plan to name College 2. Miss F says she felt obliged to accept this due to the length of time the Tribunal would take. A final EHC plan naming College 2 was issued on 18 July 2024, but B did not attend. Miss F says College 1 and College 2 cannot meet B’s needs.
28. B turned 16 years old in summer 2024 and was therefore no longer compulsory school age. Another final EHC plan was issued in January 2025 naming College 2.
29. The Council replied to Miss F’s June 2024 complaint in May 2025. It apologised for the delay, which was caused by a complaints backlog. The Council said it considered School X could meet B’s needs. Miss F now had a right of appeal in relation to College 2.
30. In its final complaint response of July 2025 the Council offered to pay Miss F £300 to remedy the distress caused by its delay in replying to her complaint. It said it had been School X’s responsibility to address B’s non-attendance.
31. Another EHC plan naming College 1 was issued on 23 July 2025. Miss F came to the Ombudsman. She said B had been out of education since July 2022 and College 1 was not appropriate for B.

My findings

32. I have ended my investigation.
33. Miss F came to us in October 2025. So, as explained in paragraph 3, her complaint about events from 2022 to September 2024 is late. I do not consider there are good reasons why Miss F did not complain in 2023 about a lack of education since 2022, so I will not investigate what happened from 2022 to November 2023 (when the EHC plan was issued).
34. Miss F complained to the Council in June 2024 but did not receive a response until May 2025. So I can consider the period November 2023 to September 2025.
35. However, Miss F appealed to the Tribunal about School X being named in the November 2023 plan. Miss F wanted the Council to make alternative provision for B because she considered School X was not suitable and could not meet B’s needs. Whilst B was not receiving the provision set out in her EHC plan, this was because she was not attending the school named in that plan.
36. I am satisfied that the reason for B not attending School X is linked to Miss F’s disagreement about the special educational provision and the educational placement in the November 2023 EHC plan, which she appealed. She then also appealed the April 2024 EHC plan. As set out in paragraphs 6 and 16-18, I therefore cannot investigate educational or alternative provision from November 2023 to January 2025.
37. This also applies to the provision after the January 2025 and July 2025 EHC plans. I am satisfied that the reason for B not attending Colleges 1 and 2 is linked to Miss F’s disagreement about the special educational provision and the educational placement in the 2025 EHC plans. I appreciate Miss F did not want to appeal due to the length of time it took but it nonetheless was reasonable for her to appeal if she considered Colleges 1 and 2 were not suitable. As set out in paragraphs 5 and 16-18, I therefore cannot investigate special educational provision from January 2025.
38. The Council’s response to Miss F’s June 2024 complaint was delayed. It has already offered to pay Miss F £300 to remedy the distress caused. I am satisfied this is an appropriate and proportionate remedy in line with our guidance. As I can achieve nothing more, I intend to exercise my discretion not to investigate complaint handling, in line with paragraph 2.

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Decision

39. I intend to end my investigation into Miss F’s complaint because it is out of our jurisdiction.

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Investigator's decision on behalf of the Ombudsman