Summary: We will not investigate Mr X’s complaint that the Council named an unsuitable school in his child, Y’s, Education Health and Care (EHC) Plan. This is because Mr X could have appealed the content of Y’s EHC Plan to the First-tier Tribunal. We will also not investigate Mr X’s complaint that the Council failed to provide suitable alternative education to Y, because further investigation would not lead to a different or worthwhile outcome.

The complaint

1. Mr X complained that:
1. the Council named a school in his child’s Education, Health and Care Plan (EHC Plan) that it knew could not meet Y’s needs;
2. when Y was unable to attend that school, the Council failed to provide Y with a suitable alternative education;
3. the Council delayed responding to his complaint and when it did, referred to his child incorrectly; and
4. as a result of the missed education, his child also missed out on free school meals for several months.
2. Mr X said the Council’s faults impacted Y’s mental health and caused the family financial hardship. He wants the Council to provide a suitable remedy for the injustice caused.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 could not add to any previous investigation by the organization;
• further investigation would not lead to a different outcome; or
• there is no worthwhile outcome achievable by our investigation.

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

5. The First-tier Tribunal (Special Educational Needs and Disability – SEND) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
6. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
7. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 

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How I considered this complaint

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

EHC Plan 

10. 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. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the Tribunal or the council can do this. 

Appeal rights

11. 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.

Section 19 duty

12. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
13. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)

What happened

14. The Council issued a final EHC Plan for Y on 9 September 2024, naming a mainstream high school.
15. The Council told Mr X that if he disagreed with the EHC Plan, including the named school placement, he could appeal to the SEND Tribunal within two months. Mr X did not agree a mainstream setting was suitable but he did not appeal the Plan.
16. Y started at the school but stopped attending in late October.
17. The deadline to appeal the EHC Plan lapsed on 9 November and Mr X did not appeal to the Tribunal.
18. An emergency review of Y’s EHC Plan was carried out in mid-November. The Council agreed it would begin searching for an alternative educational placement that could meet Y’s needs, including specialist schools.
19. Four months later, Mr X complained to the Council that Y was still without access to school, alternative provision, or online learning.. He said he had felt forced to agree to a mainstream setting, even though Y’s primary school SEND Co-ordinator had advised it was not appropriate. He also said Y had missed out on free school meals due to not being in school and this was causing the family financial hardship.
20. The Council responded at stage 1 of its complaints procedure in late March. It explained the Council had to name a school in section I of the final EHC Plan, to give parents access to their legal right of appeal. The Council said the school had provided work for Y via Google Classroom and had offered access to an alternative online education platform. The Council said it continued to consult with special schools. It accepted there had been a delay by its SEND panel in deciding whether Y needed a specialist placement and offered Mr X a symbolic remedy of £150 to recognise this.
21. Mr X complained at a second stage. He said he had been told that the EHC Plan would be “rejected” if they didn’t name a school. He said they couldn’t get Google Classroom to work, and the alternative online education platform had not been offered until March 2025 – several months after Y stopped attending school. He said the Council’s Stage 1 response had been two weeks late and had repeatedly referred to Y incorrectly in its complaint response, including using an incorrect name.
22. In late April 2025 the Council held a further emergency review of Y’s EHC Plan.
23. The Council responded at stage 2 of the complaints procedure in mid-May. It repeated that the Council must name a school in the EHC Plan, even if that was against parental preference. It accepted the Council’s SEND Panel had agreed that a mainstream school wasn’t appropriate for Y, but they had to name it so Mr X could appeal. It also said that as Y was going into a key transition year, it had to offer Y a school place, even if all agreed a mainstream setting was not suitable.
24. The Council noted that the school had offered various kinds of support when Y had stopped attending, including small group provision, short term 1:1 provision and outreach, but the family had refused these. The Council said that it had not been aware that Y had stopped attending school until the emergency review in November.
25. The Council accepted that it should have continued to consult special schools after it had issued Y’s EHC Plan, but that it had not done so until after the emergency review in November 2024. It said that alternative educational options were offered to Y in late February and early March 2025, but the family refused these.
26. The Stage 2 complaint response concluded that the Council had failed to consider its section 19 duties properly from the date of the November 2024 emergency annual review and did not properly consider its duty and offer alternative provision until late February 2025. The Council said if it had considered its duty properly, it may have decided to provide Y with alternative education sooner. By way of remedy, it offered Mr X a symbolic payment of £1,000 for the provision that may have been missed over one school term because of the Council’s fault. It also increased the symbolic payment for Mr X’s time and trouble from £150 to £200. The Council apologised for referring to Y incorrectly in its complaint response and for its delay in responding to Mr X’s stage 1 complaint. It listed several actions it would take to improve its services. The Council said it would:
• Review and, if necessary, amend its processes to ensure that a child with low attendance is brought to the Council’s attention and allocated to a responsible officer for follow up and monitoring.
• Amend the paperwork that goes to the Council’s SEND Panel to ensure that it considers and records whether a section 19 duty should apply in the case of a child with poor attendance.
• Work with commissioning partners to develop a system to monitor closely the progress of children for whom the SEND Panel has identified that the setting named in an EHCP is unlikely to be suitable in the long term.
• Continue to actively seek alternative settings in the case of such children (unless the child settles in and demonstrates good attendance).
• When a parent decides not to send their child to school because they consider it to be unsuitable, the Council will either consider its section 19 duties or act through the Attendance and Placement Team.
• Where an alternative setting is being sought, the Council will advise parents that this could take a long time, so short term placements can be considered in this light.
• Ensure that complaints are dealt with within the published timeframe wherever possible and include an accurate new deadline in letters that are sent to explain the delay.
27. In late May 2025 the Council contacted Mr X to advise that it would arrange a package of Education Other Than At School (EOTAS) for Y. The Council backdated Y’s removal from the school roll to the date of the emergency review meeting in late April, meaning it could provide funding for free school meals from that date. The Council said it would also provide backdated funding equivalent to free school meals for one term, to recognise that Y may have missed out on free school meals avoidably due to the Council’s fault.
28. Mr X was unhappy with the remedies offered and complained to the Ombudsman.
29. The Council issued a final, amended EHC Plan for Y in August 2025 which named a specialist school as the educational setting.

Analysis

30. Mr X complained that the Council named a school in Y’s EHC Plan that it knew could not meet Y’s needs. The Council has accepted that its Panel agreed a mainstream setting would not be suitable for Y before it named a mainstream school in the Plan. However as set out at paragraphs 6 and 7, the law says we cannot normally investigate a complaint when someone has a right of appeal to a tribunal about the same matter and it was reasonable for them to use that right. Mr X could have appealed the Council’s decision to name a mainstream school to the Tribunal so I have not investigated this part of his complaint.
31. Mr X also complained that when Y was unable to attend their school, the Council failed to provide Y with suitable alternative provision and the Council’s complaint handling about this had been poor.
32. The Council accepted it did not properly consider its section 19 duty at that time and if it had, it might have decided to offer Y alternative provision sooner than it did. It apologised for this and also for its delay in complaint handling and for referring to Y incorrectly in its complaint response.
33. In addition to the apology, the Council offered Mr X £1200 to recognise that if not for its fault, Y might not have missed out on a term of education and Mr X would not have been put to the time and trouble of complaining. It also offered to pay Mr X the equivalent in financial terms of the free school meals Y did not receive for one term. The Council also set out details of improvements it has made to its service to prevent recurrence of the fault in future.
34. I have decided not to investigate Mr X’s complaint because the personal remedies, including the financial remedies offered, are either very similar, or are higher, than we would recommend if we were to investigate and find fault causing injustice. The Council has also already taken action to improve its services. As we could not add to the investigation already carried out by the Council, further investigation would not lead to a different outcome and there is no more worthwhile outcome achievable through our involvement, I have decided not to investigate this part of Mr X’s complaint.

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Decision

35. We will not investigate this complaint. In part because Mr X could have used an alternative remedy and it was reasonable to expect him to have done so and in part because we also could not achieve a more worthwhile outcome through further investigation.

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Investigator's decision on behalf of the Ombudsman