Summary: Mrs F complained the Council failed to put alternative provision in place when her children stopped attending school. We have ended our investigation. This is because one part is late and the rest is out of our jurisdiction because Mrs F appealed to the SEND Tribunal about her children’s EHC plans.

The complaint

1. Mrs F complained that the Council:
1. Failed to obtain an occupational therapy report ordered by the Tribunal in 2022, which meant her son’s education, health and care plan did not properly reflect his needs, led to inadequate provision and the breakdown of his school placement.
2. Failed to make alternative provision for him and her daughter after they stopped attending school in January 2025.
3. Relied on privately funded therapy and educational psychology reports instead of carrying out its own assessments.
4. Ignored her request for reassessment of her son’s education, health and care needs.
5. Delayed responding to her complaint.
2. As a result her children have been left without any educational provision which has made it increasingly difficult for them to re‑engage with education. This has caused significant distress, requiring both parents to take time off work. She wants compensation for lost income and having to fund alternative educational activities and private reports. She also wants a formal apology, reassurance that other parents will not face similar stress, and an explanation of what lessons the Council has learned and how it will change its processes.

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The Ombudsman’s role and powers

3. 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)
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 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)
7. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
8. We provide a free service but must use public money carefully. We will not usually investigate a failure by a council to adhere to its complaints procedure if the complaint itself is not a matter we can consider. We do not start or continue an investigation if we decide:
• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained.

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

9. 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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What I have and have not investigated

10. I have ended my investigation into Mrs F’s complaint. I have set out the reasons for this in the rest of this statement.
11. Mrs F came to us in September 2025. Our policy says we will not investigate issues beyond the date when the complaint was submitted to us, so I am not considering anything that happened after September 2025.

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How I considered this complaint

12. I considered evidence provided as well as relevant law, policy and guidance.
13. Mrs F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Special educational needs and disability

14. A child or young person with special educational needs may have an education, health and care (EHC) plan which sets out the child’s needs and what arrangements should be made to meet them. Councils are responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
15. Parents have a right of appeal to the Tribunal if they disagree with the SEN provision, the school named in their child's plan, or the fact that no school or other provider is named.
16. The Ombudsman cannot direct changes to the sections in the plan about the child’s needs, education, or the name of the educational placement. Only the Tribunal or the council can do this.
17. Children and young people may require an EHC needs assessment for the council to decide whether an EHC plan is necessary. To complete an EHC needs assessment the council must seek advice from the child's parents, the school, an identified health care professional, an educational psychologist (EP), social care, anyone else the Council considers appropriate and from any person the child's parent reasonably requests. (SEND Regulations 2014, regulation 6(1))
18. Councils may decide to seek additional advice, for example from an occupational therapist (OT) or speech and language therapist (SALT), or the child’s parent or young person may request this. The council should decide if this is necessary based on the individual circumstances of the case.

Alternative provision

19. Section 19 of the Education Act 1996 says that the council 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 makes 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.
20. 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. If a council wants to see medical or other evidence, it should ask for it at the earliest opportunity. The council should account for any challenges a parent might have in obtaining evidence, and review its position based on any new evidence it receives.
21. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
22. The courts have said if illness prevents a child from attending a particular school, it is likely to prevent that child from attending any school. The test is therefore whether the child is too unwell to attend any school, not just the school where they are on roll.
23. 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. Councils should also think about the steps needed to reintegrate the child back into their usual school setting, through ongoing conversations with relevant professionals and the parents. 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.

The Ombudsman’s jurisdiction in relation to SEND and alternative provision

24. 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)
25. 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.
26. 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.
27. 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 alternative education when the reason the child or young person is not attending education is, in our view, not connected to or is not a consequence of a matter that was, or could have been, part of an appeal to the Tribunal.
28. Where the appeal right has been used, we cannot investigate anything which happened before the appeal right started which could be considered by the Tribunal. This includes the information and advice sought (or not sought) during assessment process. This is because any injustice caused by poor, or non-existent reports, would be that the EHC plan does not meet the child’s needs, which is the subject of the appeal. Secondly, because the Tribunal has wide powers itself to order reports be completed.
29. Some parents will incur significant legal and expert fees from the point of the appeal right or during proceedings. We cannot investigate this as the Tribunal has powers to consider and/or award costs as part of the appeal. (The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699, Rule 10)
30. 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).

What happened

31. I have summarised the key events. This is not meant to detail everything that happened.
32. Mrs F has two children, her son, X and daughter, Y, who have special educational needs and disability. They were attending a mainstream primary school (“the School”). From September 2024 they were struggling to attend. Mrs F says this was due to their mental health and SEND as the school environment was too overwhelming and the school was unsuitable.
33. The Council issued an EHC plan for Y on 14 November 2024 which named the School. Mrs F appealed to the Tribunal on 10 December, she wanted Y to have education other than at school.
34. X and Y stopped attending the School in January 2025.
35. Mrs F had asked for an early review of X’s EHC plan. This took place in January. On 11 February the Council issued a new EHC plan naming the School. Mrs F appealed to the Tribunal on 26 February about X’s SEN provision and the school named in the plan, she wanted him to attend a specialist school.
36. Mrs F asked the Council to make alternative provision for X and Y. When none was put in place, she complained to the Council on 8 May. She said it had wrongly asked for medical evidence and the school placements had broken down due to a previous failure to obtain OT assessments in line with the Tribunal’s order in 2022.
37. Mrs F obtained private OT and SALT assessments of X.
38. The Council offered X one hour per week alternative provision, which increased to three hours per week in July. The Council’s final complaint response on 29 August said alternative provision did not have to be full time.
39. Mrs F withdrew the appeal for Y and started to home educate her. In February 2026 the Tribunal ordered a specialist school be named in X’s EHC plan from September, with an interim education package to be put in place in the meantime.

My findings

40. I have ended my investigation.
41. Mrs F came to us in September 2025. So as set out in paragraph 4, her complaint that the Council failed to obtain an occupational therapy report ordered by the Tribunal in 2022 is late. I do not consider there are good reasons why Mrs F did not complain to us about this sooner, so I will not investigate.
42. Mrs F wanted the Council to make alternative provision for X and Y because they had stopped attending the School completely in January 2025. Mrs F considered the School was not suitable and could not meet their needs. She appealed to the Tribunal about the School being named in X and Y’s plans.
43. I am satisfied that the reason for X and Y not attending the School is linked to Mrs F’s disagreement about the special educational provision and the educational placement in their EHC plans. As set out in paragraph 6, I therefore cannot investigate educational or alternative provision from 14 November 2024 for Y and from 11 February 2025 for X. This is the case for Y even though Mrs F later withdrew the appeal as our jurisdiction ends when a person has a right to appeal the matter.
44. Investigating whether the Council should have decided the School was not accessible under section 19 (and therefore alternative provision should be made) would require me to consider the same substantive issue that was before the Tribunal, namely, whether the School was suitable for X or Y. The law is clear that once a parent has lodged an appeal to the Tribunal, we cannot investigate matters that are the subject of that appeal or are so closely connected to it that they cannot be separated.
45. For X, the period January to 11 February 2025 is within our jurisdiction, but any investigation is unlikely to find fault or injustice. This is because once X stopped attending, the Council would be entitled to work with the School to try reintegrating him before it decided to put any alternative provision in place. I am therefore exercising my discretion set out in paragraphs 7 and 8 to not investigate this period.
46. Mrs F complains she had to fund private OT and SALT assessments. As set out in paragraph 28, I cannot investigate this as she could have asked the Tribunal to consider costs.
47. In relation to delays in the complaint process, we do not usually investigate a failure by a council to adhere to its complaints procedure if the complaint itself is not a matter we can consider. I am therefore exercising my discretion not to investigate, as set out in paragraphs 7 and 8.

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Decision

48. I have ended my investigation as it is out of our jurisdiction.

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Investigator's decision on behalf of the Ombudsman