Summary: We will not investigate this complaint about the Council not arranging alternative provision when Mrs X’s child stopped attending school because appeal rights to the SEND Tribunal have been used. We cannot investigate matters which are the subject of an appeal or are closely linked to the appeal.

The complaint

1. Mrs X complains the Council failed to provide alternative education provision to her son, who I will refer to as C, and secure the provision set out in his Education, Health and Care (EHC) Plan since March 2025, when he stopped attending school.
2. Mrs X says she has been unable to work because she has to look after her son. She would like the Council to find suitable alternative provision or bring her Tribunal hearing forward.

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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 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.
5. 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)

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How I considered this complaint

6. I considered information provided by Mrs X and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. The Council issued an EHC Plan for C in October 2024. Mrs X was unhappy with the placement named in Section I and she used her right to appeal to the SEND Tribunal.
9. In March 2025, C stopped attending the placement due to a safeguarding issue. Mrs X complains the Council failed to arrange alternative provision for C.
10. The Tribunal appeal is still ongoing, and a hearing has been scheduled for November 2025.
11. We cannot investigate how the Council delivered the content of C’s EHC Plan or how it considered its alternative education duties when he stopped attending school. This is because Mrs X has appealed the content of C’s EHC Plan to the SEND Tribunal.
12. 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. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
13. This means that 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.
14. Mrs X disagrees with the named school in Section I of C’s EHC Plan, C’s absence is related to the placement and Mrs X has appealed this section of the EHC Plan. As such, this is too closely linked to the appeal, and we therefore cannot investigate Mrs X’s complaint.

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Final decision

15. We will not investigate Mrs X’s complaint because she has appealed to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman