Summary: Miss X complained the Council named unsuitable schools in her child’s Education, Health and Care Plans and failed to provide them with a suitable education when they could not attend those schools. We cannot investigate this complaint because Miss X appealed the Education, Health and Care Plans to a tribunal and the law says we cannot investigate any matter connected to an appeal made to a tribunal.

The complaint

1. Miss X complained the Council named unsuitable schools in her child, Y’s, Education, Health and Care (EHC) Plans. She said the schools could not meet Y’s needs and so they could not attend them.
2. Miss X said the Council then failed to provide a suitable education for Y when they were not attending school.
3. Miss X said the Council’s actions caused Y to miss out on education and this impacted their development and mental health. She said she has spent a lot of time and trouble trying to resolve the issues and this has caused her distress.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)
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. The courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
8. 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

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

Education, Health and Care Plans

11. A child or young person with special educational needs (SEN) may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them.
12. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan.

Alternative provision

13. Section 19 of the Education Act 1996 says that councils must arrange suitable alternative educational provision when it finds that a child is unable to attend school because of a permanent exclusion, an illness, or for any other reason which make 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.
14. Parents also have a right to educate their children at home (Section 7, Education Act 1996). Elective home education is distinct from education provided by a council otherwise than at school. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved.

What happened

Y’s school placements

15. In January 2025 the Council issued an amended final EHC Plan for Y, which named a school, which I will call School A.
16. In February 2025 Miss X wrote to School A to tell it she would be removing Y from its roll as it could not meet Y’s needs. She told School A she would be electively home educating Y.
17. In March 2025 Miss X wrote to the Council and told it she was not choosing to home educate Y and she was waiting for Y to start at a new school. The Council then referred Y to its team that deals with children who are not in education.
18. In April 2025 Miss X appealed to the Tribunal about the school named in Y’s EHC Plan.
19. In May 2025 the Council issued a new amended final EHC Plan, naming a different school, which I will call School B. The Council said Y would start at School B in June 2025. Miss X also appealed this EHC Plan to the Tribunal, while the previous EHC Plan appeal was still ongoing. She told the Council she would not be sending Y to School B.
20. The Council then told Miss X it would not provide Y with alternative educational provision, because it had met its legal duty to provide Y with a suitable education by finding them a school place at School B.
21. The Tribunal decided to combine both of Miss X’s EHC Plan appeals into one appeal.
22. In November 2025 the Tribunal decided Y would continue to attend School B and told the Council it must name School B in Y’s EHC Plan.

Miss X’s complaint

23. Miss X first formally complained to the Council in May 2025. She said the Council had failed to provide Y with a suitable alternative education since February 2025, when they stopped attending school.
24. The Council told Miss X it accepted it should have provided alternative educational provision from when Miss X told it she was not electively home educating Y, which was in March 2025. It said it was not responsible for providing alternative educational provision after June 2025, because it secured a school place for Y from this date. It offered Miss X a remedy to acknowledge the injustice caused to her and Y by its failings.

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Analysis

25. 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.
26. This means that 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 educational placement in the EHC Plan, we cannot investigate a lack of alternative educational provision.
27. The period we cannot investigate starts from the date the appealable decision is made and given to the parent. If the parent 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.
28. Miss X’s appeal was about the suitability of the schools named in Y’s EHC Plans and Y’s non-attendance at these schools was related to their suitability and so these matters are not separable from Miss X’s appeals.
29. In Y’s case, this means we cannot investigate Miss X’s complaint from January 2025, when the Council issued the first amended final EHC Plan, until November 2025 when the Tribunal decided the appeal.

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Decision

30. We cannot investigate this complaint because the matters are not separable from an appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman