Summary: We will not investigate this complaint that the Council has been at fault in the process of making alternative and special educational needs provision for the complainant’s child. Part of the complaint is late and there are no good reasons to consider it now, and part of it cannot be investigated because the complainant used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability).

The complaint

1. The complainant, Mrs X. complains that the Council has been at fault in the process of identifying and addressing her child’s special educational needs, and in failing to make alternative provision for her while she was unable to attend school.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. 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)
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)
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 Tribunal in this decision statement.
6. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal…such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.
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 information provided by the complainant and the Council.
9. I considered the Ombudsman’s Assessment Code.

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My assessment

10. Mrs X’s child has special educational needs. Mrs X says her child was unable to attend school after October 2023 and that, at that point, the Council’s duty under Section 19 of the Education Act 1996 to make alternative provision was engaged, and it should have put provision in place. Mrs X further complains that the process of issuing her child’s Education Health and Care (EHC) plan was delayed.
11. In response to these aspects of Mrs X’s complaint, the Council has accepted that her child missed out on provision for eight weeks after October 2023. It says however that it has subsequently offered what it regards as suitable provision. It accepts that it delayed issuing the EHC plan. These aspects of the complaint were therefore upheld wholly or in part.
12. The Ombudsman will not investigate these matters because Mrs X’s complaint about them is late. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. Mrs X complained to the Ombudsman in July 2025, so matters which took place before July 2024 do not fall to be investigated. There are no good reasons to do so. The Council issued the EHC plan in August 2024, so we could only consider one month of the delay in issuing the EHC plan, and one month of inadequate alternative provision, so our intervention is not merited.
13. The evidence shows that Mrs X used her right to appeal to the Tribunal against the content of the EHC plan. This means the issue of alternative provision from the date the EHC plan was issued cannot be investigated. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal.
14. This means that if a child is not attending school, and 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. That is the case here. The period we cannot investigate starts from the date the appealable decision is made and given to the parent. The period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded.
15. This restriction also applies to the final aspect of Mrs X’s complaint, which is her contention that the Council has delayed making an Education Otherwise Than at School package available for her child. The suitability and content of such a package is not separable from matters which the Tribunal can consider, and cannot therefore be the subject of investigation by the Ombudsman.

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Final decision

16. We will not investigate Mrs X’s complaint. Part of it is late and there are no good reasons to consider it now, and part of it cannot be investigated because Mrs X used her right to appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman