Summary: We cannot investigate some of Mrs X’s complaint about how the Council delivered the content of her child’s Education, Health and Care Plan or how it considered its alternative education duties because Mrs X appealed to a Tribunal. We will not investigate the remainder because there is insufficient evidence of fault.

The complaint

1. Mrs X complained the Council:
1. failed to deliver the content of her child, Y’s, Education, Health and Care (EHC) Plan between June 2024 and June 2025; and
2. failed to provide alternative educational provision when Y became too unwell to attend school between June 2024 and June 2025.
2. Mrs X said the matter caused her frustration.

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The Ombudsman’s role and powers

3. 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))
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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.
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)
7. The courts have established that if someone has appealed 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)

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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

Background

10. Mrs X has a child, Y, who has an Education, Health and Care (EHC) Plan. Mrs X appealed the content of Y’s EHC Plan to the SEND Tribunal. Mrs X stopped sending Y to the school named in the EHC Plan in June 2024.
11. Mrs X said Y was unable to attend the school because they had Emotionally Based School Avoidance (EBSA).
12. In July 2024, the SEND Tribunal ordered the Council to name school A in Y’s EHC Plan.
13. The Council issued a final EHC Plan in September 2024 naming school A.
14. The Council reviewed Y’s EHC Plan. In late January 2025 it made a new final EHC Plan naming a different mainstream school, school B.
15. Mrs X complained to the Council. The Council responded to Mrs X and said:
1. the Tribunal ordered it to name school A in Y’s EHC Plan;
2. it worked with school A to support Y to attend;
3. it did not consider it owed Y an alternative education duty due to insufficient evidence. It said school A was available and accessible for Y.
16. Mrs X appealed the content of the January 2025 EHC Plan to the SEND Tribunal.

Analysis

Matters before July 2024

17. We cannot investigate matters before July 2024. This is because the reason Y did not attend school is too closely linked to a matter the Tribunal considered – i.e., the suitability of the school named in section I of Y’s EHC Plan.
18. Because the matters are too closely linked, we cannot investigate this complaint.

Education between September 2024 and January 2025

19. We will not investigate how the Council delivered the content of Y’s EHC Plan to them during this period, or how the Council considered its alternative education duties.
20. This is because the Tribunal ordered the Council to name school A in Y’s EHC Plan. It decided the school was suitable. The Council met its duty to secure the content of Y’s EHC Plan by naming school A in section I.
21. The Council explained about how it worked with school A to enable Y to attend, and why it determined it did not owe an alternative education duty to Y.
22. The Council completed an annual review of Y’s EHC Plan and gave Mrs X a new right of appeal to the SEND Tribunal.
23. Consequently, there is insufficient evidence of fault by the Council during this period to warrant our involvement, and so we will not investigate this complaint.

Matters after January 2025

24. We cannot investigate how the Council delivered the content of Y’s EHC Plan after January 2025 or how it considered its alternative educational duties. This is because Mrs X appealed the content of Y’s EHC Plan to the SEND Tribunal.
25. The reason Y is not receiving the content of their EHC Plan is because Mrs X disagrees with the named school in section I. She believes it is unable to meet Y’s needs.
26. This is too closely linked to the matter now under appeal. The courts have confirmed we cannot investigate any matter which is connected to a Tribunal appeal. Therefore, we cannot investigate this complaint.

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Final decision

27. We cannot investigate some of Mrs X’s complaint because she appealed to a Tribunal, and the law says we cannot investigate. We will not investigate the remainder because there is insufficient evidence of fault.

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Investigator's decision on behalf of the Ombudsman