Summary: We have ended our investigation as the matters are too closely linked to Miss X’s appeal to the Tribunal. The Council issued the amended Education, Health and Care Plan for Miss X’s child, Y, in line with statutory timescales following her appeal. There was no significant injustice caused by the Council not arranging provision between then and the start of the next term.

The complaint

1. Miss X complained the Council failed to secure suitable education for her child, Y, and did not consider their complex special educational needs (SEN). Miss X said the Council named schools in Y’s Education, Health and Care (EHC) Plan that refused to accept them, failed to meet legal deadlines and failed to secure Y’s Education Otherwise Than at School (EOTAS) package. Miss X said this meant Y did not have suitable education for two years.
2. Miss X said this affected Y’s education and mental health and caused safeguarding risks for Y and Miss X’s other child. Miss X said this also affected her own mental and physical health and affected her career and financial situation.

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The Ombudsman’s role and powers

3. 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 any fault has not caused injustice to the person who complained, or any injustice is not significant enough to justify our involvement (Local Government Act 1974, section 24A(6), as amended, section 34(B))
4. 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). 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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What I have and have not investigated

5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. 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, sections 26B and 34D, as amended). Miss X has disagreed with the Council’s actions since at least December 2023 but did not complain to the Ombudsman until June 2025. I do not see a good reason why she did not complain earlier. I have investigated events from June 2024, which is 12 months before Miss X’s complaint.
7. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6). Miss X told the Ombudsman in May 2026 there were further issues with Y’s education provision in the new setting they started attending in September 2025. We have not seen evidence the Council has had an opportunity to investigate and reply to events after its stage two complaint response of September 2025, so I have not investigated matters after that date. It is open to Miss X to complain to the Ombudsman once the Council has considered her complaint about this.

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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, policy and guidance.
9. Miss X and the Council have had an opportunity to comment on my draft decision. I have considered any comments before making a final decision.

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What I found

The Law

Education, Health and Care (EHC) Plans

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. 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. 
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; and
• amendment to these elements of an EHC Plan.

Education Otherwise Than at School (EOTAS)

12. A council can arrange for a child or young person to have Education Otherwise Than at School (EOTAS), where the young person is educated outside of a traditional school or college setting.
13. Councils may secure EOTAS packages for a child or young person who has an EHC Plan and whose special educational needs or medical needs mean they cannot attend a mainstream or special school placement.

Implementing a Tribunal Order

14. Once the Tribunal issues a decision, the council must carry out the order within a fixed period. Where the Tribunal requires the council to continue and amend an EHC Plan, it must do so within 5 weeks of the order being made.

Background

15. Miss X’s child, Y, had autism and attention deficit hyperactivity disorder (ADHD).
16. In September 2023, Y’s school, School A, said it was considering permanently excluding Y. Miss X decided to remove Y from School A and they started at School B later that month.
17. The Council issued Y’s Education, Health and Care (EHC) Plan in February 2024, naming ‘special’ as the type of school but without naming a setting. Y remained on the roll of School B.

What happened

18. In April 2024, Miss X appealed to the Tribunal and said she wanted Y to have an Education Otherwise Than at School (EOTAS) package.
19. On 29 May 2025, the Tribunal ordered the Council to amend Y’s EHC Plan and put an EOTAS package in place. The Tribunal ordered the EOTAS package should start at a minimum of six hours a week and gradually rise to fifteen hours a week. The Tribunal said the package would be how the Council delivered the Section F provision to Y, and must include English and maths, physical activity and Personal, Social, Health and Economic (PSHE) education. The Tribunal said the EOTAS package would help Y prepare for GSCEs and must remain in place until Y transitioned to post-16 provision.
20. The Council issued Y’s final EHC Plan in June 2025, and stated Y’s education setting was ‘Educated Other than at School’. The Plan said the EOTAS package could be delivered online or in person, and Y would at first receive three hours a week of core subjects, including English and maths. The Plan also said Y would at first receive one hour a week of supported physical activity and two hours a week of PSHE education. The Council also confirmed in the Plan that it would keep Y’s EOTAS package in place until they transitioned to post-16 provision, which was expected to be in September 2025.
21. Around this time, Miss X complained to the Council about its failure to secure Y’s EOTAS package. The Council responded in late July 2025 that it had not secured the EOTAS package as it had been a short period of time between the Tribunal order and the end of the academic year. The Council said it would continue looking to secure an EOTAS package while it looked for a post-16 setting for Y. The Council accepted it should have provided Y with an education between the Tribunal order and the date of its complaint response.
22. Miss X escalated her complaint to the Council. It responded in late September 2025. It said EOTAS was in place by September 2025 but was not in place for the five-week period following the Tribunal judgement up until the end of Y’s statutory school age education. It partially upheld the complaint as it considered some EOTAS provision could have been in place during those five weeks. The Council said the delay was because it had to update Y’s EHC Plan with the Tribunal decision and needed to agree funding and secure external provision for the EOTAS package. The Council said it worked on this during the school holidays and secured the EOTAS package from September 2025. It apologised it did not do so for the five weeks immediately after the Tribunal order.
23. Y started attending a post-16 education setting in September 2025, which ended the Council’s duty to secure Y’s EOTAS package.

Analysis

24. As I have explained above, we cannot investigate a complaint if someone has appealed to a Tribunal about the same matter, even if they later withdraw all or part of the appeal. 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 and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207).
25. Miss X appealed the Council’s summary of Y’s SEN, their SEN provision and the type of setting named in Y’s Education, Health and Care (EHC) Plan. Therefore, I cannot investigate these matters.
26. 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 special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
27. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person 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. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
28. The Council issued Y’s EHC Plan in February 2024, and I cannot investigate what happened from then until the Tribunal issued its decision in May 2025. This is because Y’s missed education is closely connected to the reasons Miss X appealed, including the type of setting, as Miss X wanted EOTAS.
29. 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).
30. The Council had five weeks from the date of the Tribunal to issue the amended Plan, and it did so. The Council was not at fault. Given Y’s age and the fact that other children of that age would only have been at school until the end of June, there is no significant injustice by the Council not arranging any provision until the start of the next term.

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Decision

31. I have ended my investigation because Miss X used her right of appeal and the matters complained about are too closely linked to this appeal right.

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Investigator's decision on behalf of the Ombudsman