Summary: We will not investigate Mrs X’s complaint the Council named an unsuitable school in her child’s Education, Health and Care Plan. This is because it is reasonable to expect Mrs X to use her right of appeal to the SEND Tribunal. An investigation by the Ombudsman could not give Mrs X the outcome she wants.

The complaint

1. Mrs X complains the Council unlawfully named an unsuitable school in Section I of her child, Z’s Education, Health and Care Plan (EHC Plan). Mrs X complains the Council withheld key consultation responses from schools.
2. Mrs X complains the Council refused to consider her complaint under stage two of its complaints process.

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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. 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)
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 SEND Tribunal in this decision statement.
6. 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, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

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

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How I considered this complaint

7. I considered information provided by the complainant and the Council.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. At the end of April 2025, the Council issued Z’s first EHC Plan. Z was attending an independent school placement arranged by Mrs X.
10. In May, the independent school told Mrs X that it was closing at the end of term.
11. The Council consulted alternative placements, including Mrs X’s parental preferences.
12. In June, the Council sent Mrs X a copy of Z’s amended final EHC Plan naming a mainstream school in Section I. Mrs X complains the mainstream school is unsuitable because it cannot meet her child’s needs, is against her and Z’s wishes, and Z previously attended the school, but the placement broke down leading to Z attending the independent school. Mrs X complains the Council’s decision to name Section I is unlawful. Mrs X says the Council should instead accept her parental preference and review the consultation process that led to the Council’s decision.
13. We will not start an investigation into Mrs X’s complaint. The issue at the heart of this complaint is the school named in Z’s EHC Plan and whether it is suitable. Mrs X wants the Council’s consultation process reviewed with a view to the Council naming a different school. Parents who want to challenge such decisions have a right of appeal to the SEND Tribunal. The Tribunal can decide if an EHC Plan should be amended, and a different school named. We cannot. An appeal to the SEND Tribunal could give Mrs X the outcome she wants. The Tribunal has broad powers and can review the Council’s reasons for naming the school, as well as any evidence relied on. Mrs X has told the Council she intends to appeal. It is reasonable for her to appeal and so we will not investigate.
14. So far as Mrs X complains the Council withheld consultation responses from schools and delayed deciding on Z’s new placement, we will not investigate this complaint. The Council promptly started consulting alternative placements after receiving notice from the independent school of its closure. If there was any delay by the Council, it did not frustrate Mrs X’s appeal rights, as they were available from June 2025 when it issued the amended Plan (around one month after the independent school confirmed it was closing). I have seen no evidence the Council unduly delayed sharing consultation responses. For these reasons, there is not enough evidence of fault by the Council to justify investigating.
15. It is not proportionate for us to consider the Council’s complaint handling alone when we are not investigating the substantive part of the complaint.

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Final decision

16. We will not investigate Mrs X’s complaint the Council named an unsuitable school in her child’s Education, Health and Care Plan. This is because it is reasonable for Mrs X to use her right of appeal to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman