Summary: Most of Mrs X’s complaint is out of our jurisdiction because it is closely linked to her SEND Tribunal appeal. However, the Council was at fault for a delay in deciding the support her son should receive for his special educational needs. This delayed Mrs X’s right of appeal. The Council has agreed to make a symbolic payment to recognise her distress.

The complaint

1. Mrs X says the Council has failed to provide her son, Y, with suitable full-time education since October 2024. She says his school was unsuitable (as agreed by all professionals) but the Council failed to deliver any alternative, even though he was not attending.
2. Mrs X says the Council caused delays in deciding the support Y should receive for his special educational needs, and then failed to find a school for him.
3. Mrs X says Y was then permanently excluded from school, but the Council still failed to secure suitable, full-time education for him. She says the alternative provision it offered was not suitable because of his needs and vulnerability, and, in any event, was only for two and a half days a week, which did not amount to full-time education.
4. Since then, Mrs X says, there was an incident at the alternative provision and now Y receives no education.
5. Mrs X says Y has lost education and suffered distress. She says she has also suffered distress and has lost income after giving up work to look after Y. She wants the Council to do several things to put things right, including reimbursement of her expenses and compensation amounting to almost £12k.

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The Ombudsman’s role and powers

6. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
7. 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)
8. 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.
9. We provide a free service, but we 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 if any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
10. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(1), as amended)
11. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

12. I considered evidence provided by Mrs X and the Council as well as relevant law and guidance.
13. Mrs 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 guidance

14. 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). This is routinely referred to as ‘alternative provision’.
15. When a council arranges alternative provision for non-medical reasons (including permanent exclusion), that education should begin as soon as it is possible, and at the latest by the sixth school day of the child’s absence. (Statutory guidance: ‘Arranging Alternative Provision’)
16. 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.
17. EHC plans are set out in sections which include section I (the name of the educational placement).
18. Statutory government guidance (the ‘SEND code of practice’) says that, within four weeks of an annual review, the council must write to the child’s parent and tell them whether it has decided to keep the EHC plan as it is, amend it or cease it.
19. If the council has decided to amend the plan, it must do so and issue a new one within a further eight weeks.
20. 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.
21. 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)
22. This means that if a child was not attending school, and we decide the reason for non-attendance was linked to, or was a consequence of, their parent’s disagreement about the educational placement in their EHC plan, we cannot investigate a lack of alternative educational provision.

What happened

23. In November 2024, Y’s school held an annual review of his EHC plan. It said it could not meet his needs. At this point, Mrs X says Y was not attending school because it was unsuitable for him.
24. Three weeks later, in early December, the Council wrote to Mrs X and agreed to amend Y’s EHC plan.
25. In March 2025 the Council began consulting potential schools for Y. It continued in May. But its efforts were unsuccessful.
26. Mrs X complained to the Council. In response, it admitted that its communication had been inadequate. It also accepted that, because of the difficulties finding a new school for Y, it was taking too long to amend his EHC plan. It apologised and said it would continue its efforts to find a school.
27. In July, the Council issued Y’s amended EHC plan, naming his original school until September 2025, and no school thereafter.
28. Two days later, Y’s school permanently excluded him.
29. Five school days after that, the Council placed Y on roll at its pupil referral unit (PRU) – provision which teaches children who cannot attend school and may not otherwise receive suitable education. Mrs X says the provision was unsuitable.
30. In August, Mrs X appealed section I of Y’s EHC plan (the named placement) to the Tribunal.
31. From September, Y was receiving alternative provision for part of the week; however, this has now stopped. The Council has told Mrs X that it is exploring other options for Y.
32. Mrs X says the Tribunal will hear her appeal in September 2026.

My findings

33. The dispute Mrs X has with the Council about the suitability of Y’s previous school – and, subsequently, the Council’s decision not to name a school in Y’s EHC plan at all – can only be resolved by the Tribunal. The Ombudsman cannot intervene in a matter which forms the subject of an appeal.
34. Furthermore, the courts have established that we cannot investigate anything which overlaps, is related to, or is a consequence of a matter which forms the subject of a Tribunal appeal.
35. This means almost all of Mrs X’s complaint is necessarily excluded from my investigation. I cannot consider anything which is related to her dispute about the suitability of Y’s school, or about the fact that he now has no school in his EHC plan.
36. I also cannot investigate anything which has happened as a consequence of the matters under dispute (including allegations of lost education and special educational needs provision dating back to late 2024, and continuing to this day).
37. There was a period, from mid- to late July, which is an exception. This was when Y was permanently excluded from school (and therefore the education in his EHC plan was not available to him).
38. However, I will not consider this matter further, because:
• The Council found Y alternative provision within the statutory timescale. Although Mrs X was unhappy with the provision, this was for the Council to decide, and therefore I would be unlikely to find that it was at fault.
• Even if there was some fault in what the Council did, this was only for a period of around a week (until the end of term). This would not have amounted to a significant injustice for either Mrs X or Y.
39. Since September 2025, Y’s lack of education has been caused by the lack of school in his EHC plan, rather than his permanent exclusion. This, again, can only be resolved by the Tribunal.
40. The Council was, however, responsible for a delay in amending Y’s EHC plan. Following his annual review in November 2024, the Council should have issued his amended plan by early February 2025. It did not do so until July. This was a delay of five months, for which the Council was at fault.
41. As the amended plan named the same school for Y, and therefore did not fundamentally change his circumstances at the point it was issued, I have not found that this delay caused him to lose education or other support. But it did delay Mrs X’s right of appeal, and likely caused her frustration and distress. The Council should now take action to address this.

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Action

42. Within four weeks, the Council has agreed to make a payment to Mrs X of £300 to recognise that its delay to Y’s EHC plan caused her frustration and distress, and it delayed her right of appeal to the Tribunal.
43. The Council will provide us with evidence it has made this payment.

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Decision

44. The Council was at fault, and this caused Mrs X an injustice, which the Council will now take action to address.

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Investigator's decision on behalf of the Ombudsman