Summary: The complaint is about the Council’s failure to provide Mrs C’s son with suitable alternative education when he was out of school. And an ongoing failure to find suitable provision for him and problems with the Council’s responses to a Tribunal. We uphold the complaint for the part of the complaint that is within the Ombudsman’s jurisdiction. But the Council has already made an offer of a symbolic payment that is consistent with Ombudsman’s guidance on suitable remedies. Much of the complaint is outside the Ombudsman’s jurisdiction, because Mrs C has appealed.

The complaint

1. The complainant (Mrs C) complains the Council:
• failed to provide suitable education for her son (X) from November 2024, leaving him without full time provision and causing significant educational, emotional and psychological harm;
• did not implement outcomes from mediation, including updating X’s Education, Health and Care (EHC) Plan, which delayed his school start in September 2025;
• named a school in X’s EHC Plan against her wishes and told the school he would attend despite evidence it could not meet needs;
• was poor in its communications, with multiple caseworkers, missed emergency reviews, and delays in responding to concerns;
• offered a financial remedy (£3000) which did not adequately address the disruption, harm, or ongoing failings;
• failed to engage properly with mediation, repeated non-compliance with Tribunal directions, and serious communication and case management failures. These issues culminated in the Local Authority being formally barred from Tribunal proceedings due to non-compliance.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
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. 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)
6. 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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What I have and have not investigated

7. Mrs C complained to us in September 2025. While she was waiting for us to allocate her complaint for investigation, she made a new complaint to the Council which it provided a response to by the time I was allocated her complaint.
8. I agreed to look at this new complaint, as it related to matters which were a continuation of Mrs C’s earlier complaint. But for the reasons set out from paragraph 3-4, 15-22 and 37-40 these matters are in fact ones which are outside our jurisdiction.

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How I considered this complaint

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

Legal and administrative background

Education, Health and Care Plans

11. A child or young person with special educational needs may have an 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 which include: 

• Section B: Special educational needs;
• Section F: The special educational provision needed by the child or the young person; 
• Section I: The name and/or type of educational placement.

13. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
14. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.

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 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.

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.
19. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example delays in the process before an appeal right started.
20. The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699 (‘Tribunal Procedure Rules’) give the Tribunal the power to do the following: 

• regulate its own procedure. The Tribunal Procedure Rules give the Tribunal extensive case management powers;
• take ‘such action as it considers just’ if a party fails to comply with a requirement in the Tribunal Procedure Rules, a Practice Direction or a direction by the Tribunal;
• make an order for costs if it considers a party has acted unreasonably in bringing, defending or conducting proceedings;
• require the council’s response to the appeal to include the views of the child or the reasons why the council has not asked for those views. 

21. We cannot investigate the council’s conduct during an appeal. This includes anything a complainant could have raised with the Tribunal at any stage of the appeal, or which the Tribunal has considered on its own initiative, or which could have been a part of the Tribunal’s deliberations in resolving the appeal (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)  
22. 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). 

Alternative provision – Section 19 duty

23. 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.
24. 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.
25. Councils should consider any attempts the school is making to support the child. This might involve sending work home for the child to complete, arranging disability related support, placing the child on a reduced timetable, or providing online education as a short-term measure. If there is a clear, effective, and time-bound plan for reintegration then there may be no immediate role for the council in providing alternative education.

What happened

26. X is a primary school aged child with a diagnosis of an autism spectrum condition. He has had an EHC Plan in the period before the events this statement considers.
27. In November 2024 the school he was attending served notice it was ending his placement. Mrs C contacted the Council and asked it to find X an alternative placement.
28. The Council found a school (School 1) and consulted with it. In December School 1 agreed to offer X a place. School 1 has later said this was due to an administrative error.
29. In January 2025 the Council agreed to:
• review X’s EHC Plan;
• put in place a tutoring package, whilst X was out of school.
30. In May the Council issued a final revised EHC Plan. This named School 1 at Section I. The plan was for X to have a structured transition programme to School 1, for the remainder of the Summer 2025 term. The aim was for X to start attending School 1 on a regular basis from the start of the new school year, from September.
31. In the third week of May, after the Council issued the EHC Plan, it ended the tutoring sessions it had arranged for X.
32. In June X attended School 1 for a transition programme. School 1 reported that X struggled in the transition sessions, leading it to the conclusion it was not the right setting for him. X did not start at School 1 in September, although he remained on the roll. The Council agreed on a “without prejudice” basis to resume providing tuition for him.
33. Mrs C complained. The Council’s complaint responses:
• acknowledged it should have acted to arrange suitable alternative provision when it was served notice of X’s old placement ending. The failure to secure an alternative placement resulted in an unjustified gap in X’s education and caused unnecessary distress;
• accepted the tutoring package it put in place in January 2025 was not full-time. And that it should not have stopped it in May 2025;
• accepted gaps in its communications with Mrs C.
• it offered a remedy of a symbolic payment of £3000 for the injustice these faults led to.
34. In July 2025 Mrs C asked to appeal Sections B, F and I of the May 2025 EHC Plan.
35. In September Mrs C complained to the Ombudsman. While she was awaiting us to allocate her complaint for investigation, she made a new complaint to the Council. This was about ongoing delays in it finding X a suitable placement, providing suitable provision and about its interactions with the Tribunal.
36. The Council’s complaint response:
• found a lack of responsiveness from its caseworker;
• said its view remained School 1 was an appropriate placement;
• said its duties under Section 19 of the Education Act were not triggered as X had a placement that was available for him to attend;
• accepted delays in submitting evidence to the Tribunal.

Analysis

37. The Ombudsman cannot look at the Council’s actions around X’s education from the time of the May 2025 decision that Mrs C has appealed. This includes around the provision of alternative education in the time after it issued its revised EHC Plan. This is because the Council’s view is X has a placement available that it is reasonable for him to attend. That brings those issues within ones the Tribunal can consider.
38. I know that Mrs C strongly disagrees with the Council’s view that School 1 is suitable for X. She has also supplied evidence that this is also School 1’s view. But that does not change whether we can investigate, as these are matters for the Tribunal to resolve.
39. The Ombudsman also cannot consider the complaints about the Council’s adherence to the Tribunal’s directions, as these are also within the Tribunal’s jurisdiction.
40. And we cannot look at what the Council’s educational provision for X is while the appeal is pending. That is because this provision is bound up with the matters under complaint.
41. We can look at the period before the Council issued its revised EHC Plan. But the Council has offered Mrs C a financial remedy for the approximately term and a half of X not receiving a full-time education – no education until January, then part-time to the time it issued its EHC Plan. This offer of a symbolic payment is in line with the Ombudsman’s recommendations, as set out in our Guidance on Remedies. So I have not made any additional recommendations for this period.

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Decision

42. I find fault causing injustice for the part of the complaint the Ombudsman can investigate. But the Council has already provided remedies for the injustice this led to.

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Investigator's decision on behalf of the Ombudsman