Summary: We will not investigate this complaint about the Council’s handling of Miss X’s son’s special educational needs. This is because the issues she has raised are too closely related to the Council’s decisions on his Education, Health and Care Plan which carried a right of appeal which it would have been reasonable for Miss X to use.

The complaint

1. Miss X complains about the handling of her son’s Education, Health and Care (EHC) needs assessment and delay in issuing her son’s EHC Plan. She also complains the Council has failed to put in place alternative provision for her son under Section 19 of the Education Act 1996, as he is currently unable to attend the school named in his EHC Plan, and took too long to review the final EHC Plan.
2. Miss X raises further concerns about her son’s school not providing adequate support while he was unable to attend and its safeguarding actions.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect 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 an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. We may decide to investigate if we consider it would be unreasonable to expect the person to use this right but cannot investigate if they have already used it. (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 regarding special educational needs. We refer to it as the Tribunal in this decision statement.
7. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)

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How I considered this complaint

8. I considered information provided by Miss X and the Ombudsman’s Assessment Code.

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My assessment

9. Miss X claims some delay by the Council in issuing her son’s EHC Plan but the evidence I have seen shows it completed the assessment process and issued the final Plan within the statutory timescales. I appreciate Miss X believes it should have agreed to carry out an assessment sooner but the law does not allow us to consider any delay caused by its initial refusal to assess as Miss X lodged an appeal against this decision with the Tribunal.
10. The Council conceded the appeal and issued a final EHC Plan in May 2025 but Miss X disagrees with the content of the final Plan. This disagreement is a matter for the appeals process and I have seen nothing to suggest it would not be reasonable for Miss X to use this process.
11. Miss X says her son is unable to attend the school named in the EHC Plan and that the school has failed to provide the support listed in the Plan. She complains the Council failed to put in place any alternative provision for him under Section 19 of the Education Act 1996.
12. But the Council has explained to Miss X that her son has a school place available which it considers suitable and able to meet his needs and that it has seen no evidence to show he is unable to attend. It invited Miss X to provide any evidence to show her son was unable to attend his school as part of the complaints process and this provided a suitable way forward at the time. This is especially the case as the Council was in the process of reviewing the final EHC Plan to decide if it needed to make any changes.
13. Miss X says the Council took too long to start the review but the meeting took place only two months after it issued the final EHC Plan and while there was an active right of appeal against the original Plan. I cannot therefore say there was significant delay or injustice warranting further investigation.
14. It is ultimately not for us to decide whether the Council had a duty to provide alternative provision. This is because it is too closely linked to the Council’s decision on the contents of the final EHC Plan which carried a right of appeal as set out above. We will not investigate Miss X’s concerns about the way the Council reached its decision, including the reports it commissioned to inform the final EHC Plan, for the same reason.
15. I appreciate this leaves Miss X without a remedy for this issue but due to the restrictions on our powers to investigate, 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)
16. Miss X has also raised numerous concerns about the actions of her son’s school, including the way it dealt with her complaint. But we do not have any jurisdiction to investigate these concerns as set out at Paragraph 6. We cannot therefore consider the impact of its safeguarding actions or the visits it made to her property.
17. Miss X is also unhappy with the way the Council dealt with her complaint. But it is not a good use of public resources to look at the Council’s complaints handling if we are not going to look at the substantive issue complained about. We will not therefore investigate this issue separately.

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Final decision

18. We will not investigate this complaint. This is because the issues Miss X has raised are too closely linked to the Council’s decisions on her son’s EHC needs assessment and the contents of his EHC Plan. Miss X has appealed, or could reasonably have appealed, against these decisions.

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Investigator's decision on behalf of the Ombudsman