Summary: We will not investigate this complaint about alternative educational provision for Ms X’s child in the period September 2023 to January 2025. Part of the complaint is late, and we cannot investigate matters after Ms X used her right of appeal to the Special Educational Needs a Disability Tribunal. The period remaining between the two is short and there is not enough evidence of fault by the Council in that time to warrant investigation by us.

The complaint

1. Ms X said the Council left her child without alternative educational provision between September 2023 and January 2025 when the child was unable to attend school.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. 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)
5. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal…such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.
6. 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.
7. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

8. I considered information provided by the complainant and the Council.
9. I considered the Ombudsman’s Assessment Code.

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My assessment

10. A matter complained of is late where a person was aware of it at the time it happened, and where that was more than12 months before they complain to us about it. We may exercise discretion to consider a latter matter if we think the person could not have complained to us within 12 months.
11. In this case Ms X’s child was not in education and she was aware of it and able to complain. She first approached us in April 2025. We will not therefore investigate matters before April 2024 as they are late and there is no good reason to exercise discretion to do so.
12. We cannot investigate matters after May 2025. This is because Ms X exercised her right of appeal to the SEND Tribunal against the provision specified in her child’s EHC Plan. We cannot act in an ancillary role to the Tribunal in deciding what educational provision should have been made for the child. The Tribunal right used by Ms X originated in May 2025.
13. This leaves a period of four weeks in April to May 2024. The Council told me it did not offer alternative educational provision in the first half of 2024. It said this was because it felt the school it had named (which remained the same from September 2023 to January 2025, though the provision specified changed) could meet the child’s SEN. Were we to investigate the short period from April to May 2024, it is unlikely we would find enough fault by the Council to warrant our further involvement.

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Final decision

14. We will not investigate Ms X’s complaint because:

• The period September 2023 to April 2024 is late, and there is no good reason to exercise discretion to consider it now;
• The period April to May 2024 alone is unlikely to involve enough fault by the Council to warrant investigation by us; and
• We cannot investigate the period May 2024 to January 2025 as Ms X used her right to appeal to the SEND Tribunal against the provision in her child’s EHC Plan.

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Investigator's decision on behalf of the Ombudsman