Summary: We will not investigate Ms X complaint about whether the Council provided her child with a suitable education. It is reasonable for her to have appealed to the Tribunal.

The complaint

1. Ms X says the Council failed to provide a suitable education to her child Y, and delayed in finding an alternative school.

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The Ombudsman’s role and powers

2. 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)
3. 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.
4. 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. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

5. I considered information provided by Ms X which includes the Council’s reply to them.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. The Council provided a final Education Health and Care Plan (EHC Plan) for Y in January 2024. It named School Z as the setting. Y stopped attending School Z in October 2024. Ms X said it was not safe. The Council says School Z consulted with it and they agreed to hold a review. School Z held this within a week. The Council then issued a notice saying it would not amend the EHC Plan. That notice had appeal rights to the Tribunal. Ms X chose not to appeal.
8. Ms X complained to the Council about the reasons she believed School Z was not safe. The Council considered her complaint. It decided the allegation did not meet the threshold for further investigation or further action. We are unlikely to find fault in this decision.
9. Ms X says by January she believed the Council agreed Y needed a different school placement and began to look for one. In May 2025, solicitors on Ms X’s behalf issued a pre action protocol letter against the Council. In response the Council issued an amended EHC Plan naming a different school.
10. Ms X says the Council should have provided Y with alternative education provision from when they were out of school in October 2024. The Council says there was always a place available for Y at School Z and it was Ms X’s choice not to use that placement.

Analysis

11. It is reasonable to expect Ms X to have appealed the October 2024 review decision not to change the EHC Plan if she believed School Z was not suitable. This means we will not investigate what education was suitable for Z from October 2024 until the amended EHC Plan issued in June 2025.

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Final decision

12. We will not investigate Ms X’s complaint because it is reasonable to expect her to have appealed to the Tribunal.

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Investigator's decision on behalf of the Ombudsman