Summary: We have ended this investigation. We cannot investigate Miss X’s concerns about her child, Y’s, lost education because she had a right of appeal to the special educational needs and disabilities (SEND) Tribunal about Y’s school placement. Miss X’s concerns about Y’s annual review did not cause her a significant personal injustice because when the Council issued Y’s final amended Education Health and Care (EHC) Plan following that review, she did not appeal to the SEND Tribunal. Therefore, we have not investigated that matter.

The complaint

1. Miss X complained the Council failed to provide suitable full-time education for her child, Y, from spring 2024. She said Y was not accessing school and no alternative provision was put in place. She also said she was not invited to Y’s annual review in early October 2024 and the Council communicated poorly with her. As a result, Miss X said Y missed out on receiving a suitable education to which they were entitled. She said this affected Y’s mental health and social relationships and affected the whole family.

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The Ombudsman’s role and powers

2. 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 any fault has not caused injustice to the person who complained. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
3. 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)
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 SEND Tribunal in this decision statement.

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How I considered this complaint

5. I considered evidence provided by the Council and Miss X and spoke to her on the telephone. I also considered relevant law, policy and guidance.
6. Miss X and the Council had an opportunity to comment on my draft decision. I considered comments received before making a final decision.

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What I found

Relevant law and guidance

7. 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 SEND Tribunal or the council can do this. Section I sets out the name and/or type of school.
8. 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 annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. Following the review meeting the council issues a decision to either amend, maintain or cease to maintain the EHC Plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 

What happened

9. Y is of secondary school age and has special educational needs including attention deficit hyperactivity disorder (ADHD) and difficulties with regulating their emotions and social relationships. Y attended an alternative provision placement, Alternative Provision 1, part-time.
10. In March 2024 the Council issued Y’s final amended Education, Health and Care (EHC) Plan. Section I named a maintained special secondary school, School 1. Miss X did not appeal to the SEND Tribunal about Y’s placement. Council records show Miss X spoke to the Council on the telephone about her concerns that Y would no longer attend Alternative Provision 1. Both Miss X and Y wanted Y to continue attending Alternative Provision 1. Y did not attend School 1, despite School 1’s contact with Miss X and Y to encourage Y to attend.
11. In Autumn 2024 School 1 held Y’s annual review meeting. Miss X said she was not invited. School 1 said it tried to contact Miss X about the review but she did not engage. Following the meeting, the Council decided to amend Y’s EHC Plan.
12. In late summer 2025 the Council issued Y’s amended final EHC Plan. Section I set out a type of school, a local maintained special secondary school or academy. The Council sent Miss X its decision letter which set out her new appeal rights to the SEND Tribunal which she did not exercise. Despite this, the Council arranged an Education Otherwise Than At School (EOTAS) package for Y.

My findings

Education

13. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
14. The law says we cannot investigate a complaint when someone has a right of appeal, reference or review to a Tribunal about the same matter. This also applies to someone who has not used the right of appeal but reasonably could have done so. 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)
15. The courts have established that if someone has appealed to the SEND Tribunal or reasonably could have done so, 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)
16. 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. If the parent or young person does not appeal but should have, then the period we cannot investigate ends when the Council makes another appealable decision.
17. Only the Council or the SEND Tribunal can say whether a school is suitable. The Council issued Y’s final amended EHC Plan in March 2024. It gave Miss X her appeal rights to the SEND Tribunal. Miss X was unhappy with the special secondary school named in section I of Y’s EHC Plan. Miss X made it clear she wanted Y to attend Alternative Provision 1 and Y did not attend School 1. This was within the two-month period Miss X had to appeal, but she did not. It would have been reasonable for Miss X to have used her appeal right to change the placement named in Y’s EHC Plan.
18. As explained above, because Miss X’s complaint was about Y’s lack of education which was linked to, or was a consequence of, Miss X’s disagreement about Y’s educational placement in their final amended EHC Plan, I cannot investigate it. This restriction starts from the decision letter dated March 2024 and ends when the Council issued Y’s final amended EHC Plan in August 2025.

Annual review

19. Miss X was also unhappy about Y’s annual review process which began in autumn 2024 and finished in late summer 2025. I have not investigated this matter because any fault did not cause a significant personal injustice. The annual review resulted in an EHC Plan which Miss X was content not to appeal and which contained the same special educational provision as in the March 2024 Plan, so any delay did not mean Y missed out on provision they should have had earlier.

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Decision

20. I have ended this investigation because Miss X had appeal rights to the SEND Tribunal which she should have exercised.

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Investigator's decision on behalf of the Ombudsman