Summary: We cannot investigate Mr X’s complaint about the suitability of education as this was subject to a Tribunal appeal. We are unlikely to find significant injustice caused directly by the Council’s fault.

The complaint

1. Mr X says the Council failed to provide his child, Y, with a suitable education in the school year 2024/25.

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The Ombudsman’s role and powers

2. 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)
3. 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.

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How I considered this complaint

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

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My assessment

6. The Council published an Education Health and Care Plan (EHC Plan) for Y in 2024. Y started reception at primary school, Z, in September 2024. In November 2024 School Z held an emergency review. The Council issued a notice in December 2024 that it would not amend the EHC Plan. Mr X appealed that decision to the Tribunal.
7. In March 2025, the Council and Mr X agreed a consent order and the terms of an amended EHC Plan, ending the Tribunal appeal. This amended EHC Plan named a different school, Q. But not to start until September 2025.
8. Mr X says the Council accepted in January 2025 that school Z could not meet Y’s needs. He says school Z provided a reduced timetable for the half term after Easter and Y stopped attending after the May half term. He says the Council should have provided an alternative education.

Analysis

9. We cannot investigate complaints about issues which have been appealed to the Tribunal. This means we cannot look at the suitability of the education provided to Y from December 2025 until the Tribunal ended in March 2025.
10. Mr X chose to accept the amended EHC Plan in March 2025 which stated school Q started in September 2025. If he believed Y needed alternative provision until then he could have continued his appeal.
11. The Council had a duty to make sure Y received the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the Council asks another organisation to make the provision and that organisation fails to do so, the Council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
12. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when it issues a new or amended EHC Plan or there is a change in educational placement; 
• check the provision at least yearly during the EHC review; and 
• quickly investigate and act on complaints or concerns raised the provision is not in place. 

13. It is unlikely our investigation could find that Mr X has been caused the direct injustice of missed education solely because of the Council’s fault. This is particularly so because Mr X had agreed the amended EHC Plan, Y’s age and the short time Y was out of school.

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Final decision

14. We will not investigate Mr X’s complaint because we cannot investigate matters which have been subject to a Tribunal appeal. And we are unlikely to find significant injustice caused directly by the Council’s fault.

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Investigator's decision on behalf of the Ombudsman