Summary: We will not investigate this complaint about education provision. Part of the complaint is late. The Council has already provided a suitable remedy for its recent actions. The Council has not had the opportunity to address the other part of the complaint.

The complaint

1. Mr X and Ms Y (the parents) complain the Council did not provide their child, Z, with education for two years, and instead started court action against the parents for Z’s absence. The parents say they have felt ignored by the Council, which caused them distress and caused Z to become socially isolated.
2. The parents also say the Council refuses to refund mileage costs they incurred transporting Y to their new school, and that this has cost them financially.

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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. 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 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)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions on 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. It also prevents us from investigating “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. 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)
9. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we are satisfied with the actions an organisation has taken or proposes to take. (Local Government Act 1974, section 24A(7), as amended)
10. 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))
11. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

12. I considered information provided by the complainants.
13. I considered the Ombudsman’s Assessment Code.

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My assessment

14. The parents say Z has been out of education for two years, and they complained to the Ombudsman in August 2025. We look at each complaint individually, and on its merits, considering the circumstances of each case. But we do not exercise discretion to accept a late complaint unless there are good reasons to do so. I have considered whether to exercise our discretion to investigate the complaint, but I have seen no good reasons the parents could not have complained sooner. So, we will not consider elements of the complaint about the Council’s actions before August 2024.
15. The Council issued a final Education Health and Care (EHC) Plan for Z in July 2023. They told the Ombudsman the school named in the plan was not suitable to meet Z’s needs, which lead to Z missing education. The parents say the Council did not listen to their concerns. The parents were informed of their rights to appeal to the Tribunal if they were unhappy with the provisions in the EHC Plan, and I see no reason they could not have made an appeal. So, we will not investigate this element of the complaint.
16. The Council says it became aware of Z’s absence in January 2024 and held an EHC Plan annual review the following month. The final decision was made in August 2024, and Z started at their new school in November 2024. The Council has accepted it was at fault for delaying the EHC Plan decision after the annual review. The Council has offered the parents a financial remedy for the delay and for the distress caused by the non-attendance action. The remedy is in line with our guidelines. This removes the need for us to investigate the delay.
17. We have assessed the Council’s actions in the 12 months leading up to the parents’ complaint to us. I have seen no information which shows the parents completed the Council’s complaints procedure with regards the transport costs. If they complete the complaints procedure and are unhappy with the Council’s final response, they can raise a new complaint with the Ombudsman.

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Final decision

18. We will not investigate this complaint because part of it is late, the parent could reasonably have used their appeal rights, and the Council has already provided a suitable remedy. The Council has not had an opportunity to address the other part of the complaint.

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Investigator's decision on behalf of the Ombudsman