Summary: Ms X complained the Council failed to address concerns her son Y’s special educational needs were not met in the mainstream school named in his Education, Health and Care Plan, agree to reassess his plan, provide education when he stopped being able to attend school, and respond to her complaints on time. We have decided to stop the investigation because the law says we cannot investigate parts of the complaint that were, or could reasonably have been, appealed to the Tribunal. It is also because we have decided other parts of her complaint happened too long ago, or there is not enough evidence of fault, or further investigation would not lead to a different outcome.

The complaint

1. Ms X complains about how the Council handled her son Y’s special educational needs. In particular she complains the Council:
1. Failed to address concerns she raised since 2022 that Y had unmet needs due to his placement in an unsuitable mainstream school.
2. Wrongly refused her request for a re-assessment of Y’s Education, Health and Care Plan.
3. Failed to provide educational provision for Y from January 2025 when he could no longer attend his mainstream school.
4. Took too long to respond to her complaints.
2. She says the Council’s failings caused her significant distress and she had to resign from work in 2023 to meet Y’s needs, and caused Y negative emotional and mental impacts and a loss of education.

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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:

• there is not enough evidence of fault to justify investigating, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

4. 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)
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. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)
7. 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)
8. If we are satisfied with an organisation’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)

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How I considered this complaint

9. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
10. Ms 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

Education, Health and Care Plans

11. 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. 
12. The EHC Plan is set out in sections. Section I records the name and/or type of educational placement. 

Reviewing EHC Plans

13. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The process is only complete when the council issues its decision to amend, maintain or cease to maintain the EHC Plan. It must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.

Reassessments of EHC Plans

14. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. If the decision is not to reassess, the council must also provide information about the right to appeal that decision to the Tribunal.

Appeal rights

15. There is a right of appeal to the Tribunal against a council’s:

• decision not to carry out an EHC needs assessment or reassessment;
• decision that it is not necessary to issue an EHC Plan following an assessment;
• 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;
• amendment to these elements of an EHC Plan;
• decision not to amend an EHC Plan following a review or reassessment; and
• decision to cease to maintain an EHC Plan.

16. 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)
17. 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.
18. 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.
19. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.

Alternative provision, also referred to as the section 19 duty

20. Section 19 of the Education Act 1996 says that councils must arrange suitable alternative educational provision when it finds that a child is unable to attend school because of a permanent exclusion, an illness, or for any other reason which make the school inaccessible to the child. The alternative educational provision must be suitable to the child’s age, ability and aptitude, and any special educational needs they have.
21. If a council discovers a child is absent from school for an extended period, it should consider the reasons for this, and take account of evidence from relevant parties (such as the child’s school, parents, and medical professionals). It must then decide whether it has a duty to make alternative educational provision.

What happened

22. This is a summary of key events. It is not a detailed chronology of everything that happened.
23. Y has special educational needs and an EHC Plan that named a mainstream school in Section I. Ms X said she had raised concerns from 2022 that the mainstream school did not meet all of Y’s needs. She raised a specific complaint in May 2024.
24. In June 2024, the council notified Ms X it had refused her request for a reassessment of Y’s EHC Plan. Ms X appealed the Council’s decision to the Tribunal.
25. In October 2024 the Council wrote to Ms X to notify her it had finalised an annual review and decided not to amend Y’s EHC Plan. It notified Ms X of her right of appeal to the Tribunal. She did not appeal.
26. Y stopped attending his mainstream school on 22 January 2025. Ms X said this was linked to the unsuitability of mainstream education given his special educational needs.
27. The Council issued an amended Final EHC Plan on 10 February. It named the same mainstream school. It notified Ms X of her right to appeal to the Tribunal. She did not appeal.
28. In March the Council responded to Ms X’s complaint from May 2024. It found it was at fault for various matters from 2023. It apologised.
29. Also In March Ms X requested the Council provide tuition for Y because he was unable to attend school.
30. At the beginning of April the Tribunal concluded Ms X’s appeal from 2024. It told the Council to carry out a reassessment of Y’s EHC Plan.
31. At the beginning of May the Council acted on Ms X’s request for tuition. It contacted potential providers. It secured tuition from the beginning of June.
32. In June the Council responded to Ms X’s complaint at stage 2 of its complaint process. It found fault with its failure to secure alternative educational provision since January. It apologised and offered a payment to remedy the injustice caused by the missed provision and delays.
33. The Council completed the reassessment and issued an EHC Plan in July. It named the same mainstream school. It notified Ms X of her right to appeal to the Tribunal.
34. In August Ms X appealed to the Tribunal about the Council’s decision to name the mainstream school in Y’s EHC Plan. She complained to us the same month.

Analysis

35. I address each part of Ms X’s complaint below:

a) Complaint of failure to address concerns since 2022 that Y had unmet needs due to his placement in an unsuitable mainstream school.

36. The parts of Ms X’s complaint before August 2024 happened more than 12 months before she complained to us and are therefore late. I have decided there are not good reasons she did not complain to us about the late matters sooner. I therefore cannot investigate them as explained in paragraph 4.
37. It is relevant that we cannot direct changes about the educational placement. Only the Tribunal or the Council can do this. The appropriate route for Ms X to have raised her concerns linked to Y’s placement in a mainstream school is by appeal to the Tribunal. Ms X ultimately exercised this right in August 2025. I have considered whether it is reasonable to have expected her to do so earlier.
38. Ms X had the right to appeal Y’s mainstream placement in October 2024 when the Council notified her it had decided not to amend Y’s EHC plan, and then in February 2025 when it issued an amended final EHC Plan.
39. Ms X did not appeal at those points. However, I have decided it is reasonable to expect her to have done so. This is because the Council notified her of her rights, and because she had knowledge of the Tribunal given her earlier appeal about the decision not to reassess.
40. I have therefore stopped my investigation into this part of the complaint because the law says we cannot normally investigate a complaint when someone has a right of appeal as explained in paragraphs 7 and 16.

b) Complaint about the refusal to reassess Y’s EHC Plan.

41. Ms X appealed to the Tribunal about the Council’s decision to refuse to reassess Y’s EHC Plan. This means I cannot investigate this part of Ms X’s complaint for the reason explained in paragraph 6.

c) Complaint of Failure to provide educational provision for Y from January 2025 when he could no longer attend his mainstream school.

42. I have decided the reason for Y’s non-attendance from 22 January 2025 was linked to Ms X’s disagreement about the suitability of the mainstream educational placement in the EHC Plan.
43. Ms X could have appealed the placement in October 2024, before Y stopped being able to attend school. However, I have decided it is not reasonable to expect her to have used that right of appeal regarding this part of her complaint. This is because Y’s non-attendance happened more than two months later, by which time the appeal period had ended.
44. However, I have decided it is reasonable to have expected Ms X to have used her right of appeal in response to this part of her complaint on 10 February. This is when the Council issued a final amended EHC Plan that named the mainstream school. The Council notified Ms X of her right of appeal at the same time.
45. I therefore cannot investigate the lack of educational provision from 10 February for the reasons explained in paragraphs 7 and 16 to 19.
46. I have considered whether to investigate the period between 22 January and 10 February, which was 13 working days.
47. There is no absolute legal deadline by which Councils must start to arrange education for children that cannot attend school due to health needs.
48. I also note the Council accepted it was at fault for the whole period that Y was not receiving education in its stage 2 response. It apologised and offered a payment to remedy Y’s missed education. I have considered our guidance on remedies and decided further investigation would not lead to a higher payment.
49. I have stopped my investigation into the 13 day period before 10 February because I have decided there is not enough evidence of fault to justify investigating, I could not add to anything to the previous investigation by the Council, and further investigation would not lead to a different outcome. My decision is in line with paragraph 3.

d) Took too long to respond to her complaints.

50. The Council found it was at fault for taking too long to respond to her complaints in its stage 1 and stage 2 responses.
51. It explained the investigation it had carried out. It apologised and offered a payment to remedy the injustice. I have considered our guidance on remedies and decided further investigation would not lead to a higher payment.
52. I have stopped my investigation into this part of the complaint because I have decided I could not add to anything to the investigation by the Council, and further investigation would not lead to a different outcome. My decision is in line with paragraph 3.
53. I invite the Council to repeat the total remedy offered in its stage two response, if Ms X has not already accepted it.

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Decision

54. I have stopped my investigation into part a) about unmet needs because some elements happened more than 12 months ago and I have decided more recent concerns could have been appealed to the Tribunal; part b) about the refusal to reassess because it was appealed to the Tribunal, part c) about educational provision because I have decided most of it could have been appealed to the Tribunal, and there is not enough evidence of fault to justify investigating the residual part; and part d) about complaint handling because I have decided I could not add to the Council's investigation and further investigation would not lead to a different outcome.

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Investigator's decision on behalf of the Ombudsman