Summary: Mrs X complained about the Council’s failure to provide suitable education for her child since May 2023, including a failure to name a suitable school placement in their Education, Health and Care Plan. I ended this investigation because the matters Mrs X complained about were either part of her appeal to the Special Educational Needs and Disabilities Tribunal, were too closely linked to the appeal or have not been raised with the Council as a complaint.

The complaint

1. Mrs X complained her child has not received a suitable education since May 2023.
2. Mrs X says this is because the Council failed to name a specialist educational placement in her child’s Education, Health and Care (EHC) Plan. Mrs X says the Council then failed to allocate a place at a specialist educational placement when this was offered through mediation following production of the Final EHC plan.
3. Mrs X says the Council’s actions have caused her child to miss education and caused the family distress, inconvenience, loss of earnings and extra expenses.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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)
6. The First-tier Tribunal for Special Educational Needs and Disability (SEND) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
7. 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…”.
8. 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)

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How I considered this complaint

9. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
10. Mrs X and the Council had an opportunity to comment on my draft decision before I made a final decision.

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What I found

Relevant Laws and Guidance

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. Once a council produces a child’s EHC Plan it must deliver the provision outlined within it. 
12. 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 a 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.

13. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
14. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)

What happened

15. In May 2023, Mrs X’s child, Y, stopped attending school.
16. In December 2023, Mrs X made an EHC Plan needs assessment request from the Council. The Council issued a Final EHC Plan in October 2024 naming Y’s school, School 1, in Section I.
17. Mrs X asked the Council to consider a different school, School 2, for Y. The Council responded to advise it considered School 1 could meet Y’s needs. Mrs X entered mediation with the Council in December 2024, who agreed to name a specialist placement for Y. Mrs X appealed the EHC Plan to the SEND Tribunal including Sections B, F and I. The Tribunal registered the appeal in January 2025.
18. Mrs X made a complaint to the Council in June 2025. Mrs X complained about the delay in placing Y at a specialist school since the agreement at mediation in December 2024.
19. The Council provided a stage one complaint response in which it stated since Mrs X had raised an appeal with the SEND Tribunal about Y’s school placement it cannot address this within its complaint procedure.
20. Mrs X sought consideration of her complaint further because she said the Council delayed naming a suitable school since January 2025 in Y’s EHC Plan because the Council had completed all consultations by this point.
21. The Council responded at stage two to advise that its decision making about school placements was superseded by the appeal to the SEND Tribunal which was underway.
22. In August 2025, Mrs X brought her complaint to the Ombudsman.
23. In December 2025, the Council agreed to place Y at School 2, started transition arrangements and told the Tribunal about it conceding this point of the appeal.
24. The Tribunal considered Mrs X’s appeal in January 2026. The Tribunal told the Council to make changes to Sections B and F and to name School 2 in Section I.
25. The Council produced the amended Final EHC Plan for Y in February 2026.

Consideration

Appealed to the Tribunal

26. We have no discretion to investigate any issues which are part of a person’s appeal to a relevant tribunal.
27. Mrs X used her right to appeal Sections B, F and I of Y’s October 2024 EHC Plan to the SEND Tribunal. Mrs X did so following mediation with the Council. While the Council conceded the appeal about Section I in December 2025, this still formed part of the appeal to the SEND Tribunal and was part of the tribunal’s judgement.

Linked Matters

28. The courts explained an appeal against section I of a child’s EHC Plan refers to a council’s decision to name an unsuitable school or its failure to act to name a suitable school. The consequence of such a decision might be the council fails for a period of time to discharge its duty to provide alternative education or suitable education through a school. The courts clarified the Ombudsman had no jurisdiction to investigate the consequences of a decision if investigation of the decision itself was excluded.
29. If a person disagrees with the placement named in an EHC Plan we would generally not remedy a loss of education after the date a person gained the right of appeal.
30. Because Mrs X appealed to the SEND Tribunal, and part of her appeal is about the suitability of the school placement, we cannot look at the Council’s actions regarding Y’s access to education.

Matters before the appeal right

31. Whilst Mrs X complained to us Y had not received an education since May 2023, her complaints to the Council were about the Council’s delays in following through on its agreement during mediation in December 2024. This is not separable from the matters considered by the Tribunal and forms part of the wider appeal process.
32. It was reasonable for Mrs X to raise Y’s loss of education since May 2023 in her complaint to the Council. Since Mrs X has not complained to the Council about this, I have not investigated this.

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Decision

33. I have ended our investigation because I cannot investigate the issues which have been appealed to the SEND Tribunal or matters which are too closely linked to the appeal.

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Investigator's decision on behalf of the Ombudsman