Summary: Mrs X complained about the Council’s failure to deliver the special educational provision included in her child’s Education Health and Care Plan. Mrs X also said the Council had failed to provide alternative education for her child when they were out of school. She also complained the Council did not provide free transport for some provision sessions and communicated with her poorly. We have decided not to investigate this complaint as the matters complained about were either part of Mrs X’s appeal to the Special Educational Needs and Disabilities Tribunal or are too closely linked to the appeal. Matters before her appeal right arose happened too long ago for us to consider.

The complaint

1. Mrs X complains the Council:
• Did not provide her child with suitable education from March 2023 until they started a new placement in December 2024.
• Did not provide the special educational provision in her child’s Education, Health and Care (EHC) Plan from February 2024 after the Council issued a final EHC Plan.
• Did not provide free transport for eight provision sessions her child attended.
• Communicated with her poorly throughout the Special Educational Needs and Disabilities Tribunal process.
2. Mrs X said her child has missed out on education and provision they should have received. She also said she paid privately for provision for her child, incurred significant advocacy costs and costs for assessments for her child. Mrs X said the whole situation significantly impacted her and her husband’s mental health.

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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. In determining whether to initiate, continue or discontinue an investigation we act in accordance with our own discretion, subject to the provisions of sections 24A, 26 and 26D of the Local Government Act 1974. (Local Government Act 1974, section 24A(6), as amended)
5. 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)
6. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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)
8. 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.
9. 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.
10. 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). 

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How I considered this complaint

11. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
12. Mrs X 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

Law and guidance

13. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the SEND Tribunal in this decision statement.
14. 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. Parents must consider mediation before deciding to appeal. 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. (Children and Families Act 2014 Section 51(2))

What happened

15. In September 2022, Mrs X’s child, Y, started a school placement. In March 2023, Y’s school put them onto a reduced timetable. The school also put in place some adjustments for Y however these were unsuccessful.
16. In February 2024, the Council issued a final EHC Plan for Y. This named a mainstream school as Y’s school placement.
17. Mrs X appealed the content of the EHC Plan to the SEND Tribunal. Mrs X appealed Sections B, F and I:
1. Mrs X did not consider Section B included several needs identified by Y’s school.
2. Mrs X challenged the special educational provision included in Y’s EHC Plan as it was not suitable, quantified or specified. Mrs X also felt Y needed targeted support for communication and interaction and raised concerns that an assessment was needed from a sensory integration occupational therapist to see if there were any needs in this area which needed explored.
3. Mrs X challenged Y’s school placement. Mrs X said this was not an appropriate school type for Y, and they had been on a reduced timetable for a long time.
18. In December 2024, the Council found Y a new school placement which had been agreed with Mrs X. In January 2025, the SEND Tribunal ended through a consent order.

Analysis

19. We generally would not investigate a complaint when the issues complained of are matters which could have been appealed to the SEND Tribunal. We have no discretion to investigate any issues which were part of Mrs X’s appeal. Besides, the courts have found we cannot investigate any matter closely linked to the matters under appeal.
20. Mrs X had the right to appeal Sections B, F and I of Y’s EHC Plan from February 2024, when the Council issued the plan. She lodged her appeal against Sections B, F and I.

Non-delivery of special educational provision

21. As explained above, we would not normally investigate any issues which are closely linked to appeal matters.
22. Mrs X considered Sections B and F of the EHC Plan were inadequate. Section F was not specified or quantified enough and Section B did not include all of Y’s needs. Mrs X also disagreed with the named placement. Given that most of Y’s special educational provision was school based and due to be delivered at a school setting, looking at non-delivery of this provision would be too closely linked to the issues which were under appeal.
23. Further, Mrs X’s appeal to the SEND Tribunal referred to the need for further assessments for Y in relation to Section F provision. Therefore the extent of her disagreement with Section F was not determined in her application for appeal and was open ended in nature. Because of this our investigation would be at risk of interfering with the SEND Tribunal jurisdiction.

Alternative provision

24. 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 decision might be that the council fails for a period of time to discharge its duty to provide alternative education. The courts clarified the Ombudsman had no jurisdiction to investigate the consequences of a decision if investigation of the decision itself was excluded.
25. If a person disagrees with the placement named in an EHC Plan we would generally not remedy a loss of education after the date the right of appeal was engaged.
26. Mrs X had a right of appeal from February 2024. Because Mrs X appealed Y’s EHC Plan and the placement named, we cannot look at the Council’s actions or failure to provide suitable alternative provision for Y.
27. Mrs X also complained the Council had not provided alternative provision to Y from March 2023, nearly a year before it issued the final EHC Plan in February 2024. I have not investigated these concerns. This is because too much time has passed since these events happened until Mrs X brought her complaint to us in September 2025. I cannot see any good reasons why Mrs X could not have complained to us sooner about this matter.

Free transport and communication

28. Mrs X said Y did not receive transport to eight sessions of provision. In its complaint response the Council recognised this, apologised and agreed to pay Mrs X a milage allowance. I do not consider further investigation would add anything or be proportionate.
29. In relation to Ms X’s communication concerns, much of this occurred during the SEND Tribunal process so we could not consider this. In addition as I will not investigate the other issues of this complaint, it would be disproportionate to look at how the Council communicated with Mrs X.

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Decision

30. I will not investigate this complaint as some matters complained about are either too closely linked to the appeal to the SEND Tribunal or could have been appealed. I cannot investigate the issues which have been appealed to the SEND Tribunal. Some of the matters I cannot investigate as too much time has passed and I can see no good reasons why they were not brought to us sooner.

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Investigator's decision on behalf of the Ombudsman