Summary: We have discontinued our investigation into Miss X’s complaint about the education delivered to her son while he was out of school (and the financial impact this had on her). Much of her complaint is outside our jurisdiction, either because it is too old or because she could have taken her dispute about her son’s educational placement to the SEND Tribunal (and our role cannot overlap that of the Tribunal). In any event, her search for compensation is more suitable for the courts.

The complaint

1. Miss X complains that her son, Y, was out of mainstream education for 18 months while the Council tried to find a suitable placement for him. In the end, she says she found education for him after she had ‘had enough’ of the delays.
2. Miss X says she was caused a financial injustice because she lost her job from having to be at home with Y. She also says she spent money on educational provision for him.
3. Miss X wants compensation for distress and loss of earnings (including loss of future career progression). She also wants her costs to be reimbursed.

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The Ombudsman’s role and powers

4. 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 we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), as amended)
5. 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, section 26B, as amended)
6. The law says we cannot normally investigate a complaint when someone has, or had, a right of appeal, reference or review 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 could have been referred to it to resolve using its own powers. However, we may decide to investigate if we consider it would be, or would have been, unreasonable to expect the person to use their appeal right. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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.

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How I considered this complaint

8. I considered evidence provided by Miss X and the Council as well as relevant law.
9. 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

Law and jurisdiction

10. A child or young person with special educational needs 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.
11. There is a right of appeal to the Tribunal against the content of a child’s EHC plan, including the council’s description of their special educational needs, the specified provision, or the named school or placement.
12. The courts have established that if someone has appealed to the Tribunal, 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)
13. This means that if a child is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent’s disagreement about the educational placement in the EHC plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
14. The same restrictions apply when someone had a right of appeal to the Tribunal and it would have been reasonable for them to use that right (even if they did not do so).

What happened

15. The Council issued Y’s EHC plan in November 2023. Although the school he attended at that time had said it could not meet his needs, the Council named it in the EHC plan while ‘a new school was sourced’.
16. Miss X was unhappy with the named school and said she did not think it was suitable for Y. She told the Council that Y could no longer attend the school because he was too stressed to do so. She said he would be off school ‘for his mental health and medical needs’ until further notice. She asked the Council to provide alternative provision for Y.
17. After a number of unsuccessful consultations to different schools, and after some discussion with Miss X, the Council arranged an alternative provision placement for Y. This started in late February 2024. In March, the Council amended Y’s EHC plan and named the alternative provision placement.
18. Y initially received around 10 ½ weekly hours of provision at his new placement, rising to 17 ½ hours (although I do not know how long this process took).
19. The Council continued to consult schools, and continued to meet with Miss X to discuss potential schools and to discuss Y’s progress. One school offered Y a place, but Miss X said it was too far away.
20. In June, Miss X told the Council that Y was not getting enough education. She also said his placement was inappropriate, and he was making no progress.
21. The Council made some amendments to Y’s EHC plan and, in July, reissued the plan. The alternative provision placement was still named.
22. In September, another school offered Y a place, but, again, Miss X said this was too far away.
23. In December, Miss X began arranging tuition for Y herself, and his hours at his placement dropped to accommodate this. Miss X asked the Council to fund the tuition.
24. In January 2025, the Council’s funding panel agreed to fund Y’s tuition. His alternative provision placement ended in early February, and the Council funded his tuition from this point on.
25. Later in February, Miss X made a complaint to the Council. She said:
• Y had been out of education for 18 months and she had been forced to stay at home throughout that period to look after him.
• This had ultimately led to her losing her job.
• She wanted compensation for loss of earnings and loss of career progression.
• She had also had to spend thousands of pounds on keeping Y occupied.
26. The Council responded to Miss X in March. It said she had made the decision to remove Y from school. It also said it had provided alternative provision to Y while he was out of school, and this generally ranged from between nine and 17 ½ hours a week. It said this meant he had not been out of education for 18 months. It refused her request for compensation.
27. Miss X made another complaint. She gave reasons why the education offered by Y’s alternative provision placement was inadequate. She said it could not meet his needs, and, as a result, she had had to pay for additional provision (such as taking him to theme parks and buying him Lego sets), for which she wanted reimbursing. She also repeated her request for compensation.
28. In April, the Council sent Miss X its final complaint response. It said:
• Y’s alternative provision placement was designed for children with complex needs. Some of the sessions it offered were specifically designed for such children, and, while they did not provide ‘academic’ learning, they were aimed at reintegrating children back into education.
• The vast majority of Y’s alternative provision was delivered outside the home, and therefore did not require Miss X’s attendance.
• Y’s placement eventually offered his the maximum number of hours it could (17 ½ per week). But he still did not manage to access it.
• There was no merit in Miss X’s argument that she had to commission additional provision for Y (including theme parks and Lego). Not all of what Miss X paid for was actually special educational needs provision; nor was it listed in Y’s EHC plan.
• In the Council’s view Y’s alternative provision placement provided him with a suitable interim offer while school placements were consulted.
• The Council did not agree to reimburse Miss X for the costs she incurred, particularly as she did not seek prior approval from the Council. And, while she was made redundant in the time that Y attended his alternative provision placement, it was not possible to say that this was a direct result of the education on offer to him
• Miss X also did not face unreasonable distress due to the actions of the Council, and therefore compensation would not be appropriate.
29. Miss X remained dissatisfied, and, in June, brought her complaint to the Ombudsman. She said her sole desired outcome was compensation for distress and loss of earnings.

My findings

30. Our jurisdictional rules preclude me from investigating Miss X’s complaint.
31. Firstly, Miss X did not complain to us until June 2025, which means any complaint about events before June 2024 is too old. I have seen no good reason why it would have been unreasonable to expect her to complain earlier.
32. Secondly, Miss X had the opportunity to appeal the suitability of Y’s alternative provision to the Tribunal in March and July 2024 when the Council named it in Y’s EHC plans.
33. At the point Miss X was given her appeal rights, the dispute about the suitability of the provision (including her dissatisfaction with the number of hours it was able to offer) could only have been resolved by the Tribunal. The Ombudsman cannot intervene in a matter which could have formed the subject of an appeal, and our role cannot overlap that of the Tribunal.
34. Furthermore, the courts have established that we cannot investigate anything which overlaps, is related to, or is a consequence of a matter which could have formed the subject of a Tribunal appeal.
35. This means I cannot investigate anything which has happened as a consequence of the Council’s decision to name Y’s alternative provision in his EHC plan, including any lost education for Y or expenses incurred on Miss X’s part.
36. In any event, had there been any part of Miss X’s complaint which I could have investigated, I would not have been able to achieve the outcome she wants.
37. We have neither the resources nor the expertise to consider loss of earnings (or loss of career opportunities) claims. Furthermore, we are not the correct body to decide the extent of the financial loss Miss X may have suffered as a result of her dispute with the Council about reimbursement of costs. These are all matters for the courts.
38. For these reasons I will take no further action on Miss X’s complaint.

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Decision

39. I have discontinued my investigation.

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Investigator's decision on behalf of the Ombudsman