Summary: Miss H complains the Council failed to put adequate support in place for her son when he could not attend school, meaning he lost over a year of education. It twice refused to issue an Education, Health and Care Plan and later, would not agree to her request for a review. Most of Miss H’s complaint is outside the Ombudsman’s jurisdiction due to the appeal rights she had. For the part of her complaint we can look at, the remedy the Council has offered is likely more than the Ombudsman would recommend, we have completed our investigation.

The complaint

1. The complainant (Miss H) complains the Council:
• failed to put adequate support in place for her son (X) meaning he lost over a year of education;
• refused twice to issue an Education, Health and Care (EHC) Plan;
• failed to meet its communication protocols;
• refused her requests for an early review of X’s EHC Plan. She asked for these as a mainstream placement is not appropriate for him;
• made several clerical mistakes which caused delays.
2. Miss H says, as a result of limited social interaction, X has social anxiety. His consultant said a new disability was caused by the stress of the transition from primary to secondary school without adequate support. Miss H says she is being treated for anxiety and depression. She has been financially affected due to X not going to school and having to put provisions in place herself.

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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. 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)
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. 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)
7. 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

8. 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 an 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;
• decision not to amend an EHC Plan following a review or reassessment; and
• decision to cease to maintain an EHC Plan.

9. 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)
10. 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.
11. 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.
12. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.
13. 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). 
14. 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.
15. For these reasons I have decided I cannot look at any issues after May 2025, when the Council first issued an EHC Plan for X. Although Miss H did not appeal this first decision (she did appeal a later revised Plan), it was reasonable for her to have done so if she then disputed the contents of the Plan.

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How I considered this complaint

16. I considered evidence provided by Miss H and the Council as well as relevant law, policy and guidance.
17. Miss H 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

EHC Plan 

18. A child or young person with special educational needs may have an EHC Plan. Following completion of an EHC needs assessment, if the Council decides an EHC Plan is not necessary it must notify the child's parents or the young person of its decision and of their right to appeal that decision.
19. If a Council decides to issue 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. 
20. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.
21. The council can refuse a request for a reassessment if less than six months have passed since a previous EHC needs assessment. It can also refuse a request if it does not think it is necessary, for example because it does not feel a child or young person’s needs have changed significantly.

Alternative provision

22. Section 19 of the Education Act 1996 says that 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 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.
23. 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.
24. 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

25. The information below is a summary of relevant events, and does not include every everything that happened during this period.

Background

26. In September 2024 X moved to secondary school. His attendance started to decline. In November the Council’s Inclusion Service contacted Miss D. The school suggested Miss D apply to the Council for an EHC needs assessment, which she did. By December X was on a reduced timetable at the school.
27. The Council at first refused Miss D’s application for an EHC needs assessment. But in February 2025, following a mediation request, it agreed to carry out an assessment.
28. From March X stopped attending the school. The Council’s records show the School offered X its in-house online learning and a day at a placement that worked with the school to support its pupils’ mental health and reintegration back into school.
29. On 12 May 2025 the Council issued an EHC Plan.
30. Miss D complained about the Council’s delay in providing alternative education for her son, including after it issued his EHC Plan.
31. The Council’s complaint responses:
• advised the mediation and tribunal process was the place to consider the contents of X’s EHC Plan;
• noted the school put in place a reintegration plan for X. The plan included the measures it would expect to see, and it was reasonable for it to allow some time for it to be effective. It acknowledged the offer was not fulltime. But it considered it suitable, due to the time X was out of school and a need for a gradual transition;
• accepted it should have considered looking into other services and providing more support when it became clear, from January 2025, that X’s needs were not being met. It apologised;
• over two letters offered a payment for injustice caused by the faults it identified (from January to October 2025). The amount it offered totalled £3200.

Analysis

32. Most of the period Miss H complained about is outside the Ombudsman’s jurisdiction. That is because Miss H appealed, or had the right to appeal, the Council’s EHC Plans. The main dispute was whether X’s mainstream school was suitable for him (and whether it was hindering his attendance). The placement is a matter the Tribunal could have considered and so is not something the Ombudsman can investigate. We also cannot investigate issues which are connected to matters that could have been appealed. This includes the issue of alternative education, as the reason Miss H says X was not attending was due to the unsuitability of the school.
33. The fact the Council conceded a later appeal and agreed to find specialist provision for X does not change the limits of our jurisdiction.
34. That means the period we can look consider ended on 12 May 2025 – the date the Council issued its first EHC Plan.
35. Until March X was still, partly, attending the school, which means the Council was correct to say the school had responsibility for X’s provision. The Council has accepted it could have provided more support after January 2025 and offered a remedy. I have considered the Council’s total remedy and compared it to what we could likely achieve (given the limited period we can investigate). My decision is further investigation would unlikely result in an improved remedy for Miss H. So I it is not a good use of public funds to investigate further.

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Decision

36. I find fault causing injustice, which the Council already remedied.

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Investigator's decision on behalf of the Ombudsman