Summary: We have ended our investigation into Miss X’s complaint about whether the Council secured the provision in her child’s Education, Health and Care Plan. Miss X appealed the Plan to the Tribunal. We cannot investigate any matters linked to Miss X’s appeal.

The complaint

1. Miss X complained the Council failed to secure the provision in her child, Y’s, Education, Health and Care (EHC) Plan when the school named in the EHC Plan refused to admit Y. She also complained the Council failed to provide a suitable alternative education for Y while they have been out of school. She says Y has missed out on his education causing Miss X’s family distress and frustration. She wants the Council to secure a school for Y and compensate her for the impact of its failings.

Back to top

The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We provide a free service but must use public money carefully. 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)
3. 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)
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 Tribunal in this decision statement.
5. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal…such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.

Back to top

How I considered this complaint

6. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
7. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

Back to top

What I found

The Law

8. 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 Tribunal or the council can do this. 
9. There is a right of appeal to the Tribunal against a council’s:

• 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;
• amendment to these elements of an EHC Plan.

10. 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)
11. 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.
12. 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

13. In June 2024 the Council issued an Education, Health and Care (EHC) Plan for Miss X’s child Y. At the time Y was due to transition to primary school in September 2024 and would be of statutory school age by the start of the Spring term in January 2025. The EHC Plan named a mainstream primary school, school A, as Y’s placement.
14. In September 2024 school A refused to admit Y, saying they could not meet their needs. Later that month a Council panel said school A could meet Y’s needs and Y should be attending school A. Miss X entered mediation with the Council and appealed Y’s EHC Plan in October 2024. Miss X appealed Y’s placement and the provision in the EHC Plan. Around this time the Council discussed the possibility of a new unit at school B with Miss X.
15. The Council consulted with school B, in March 2025. School B said it could admit Y but not until January 2026, when the new unit provision was due to open. The Council said it became aware Y was out of school in July 2025.
16. In August 2025 the Council told Miss X it could name school B in the EHC Plan or name a type of school and continue looking for a placement for Y. It said both would end Ms X’s current appeal to the Tribunal.
17. Miss X decided to continue with the Tribunal appeal and said she wanted Y to attend school C. Miss X informed the Tribunal of her preference for school C and the tribunal amended the appeal.
18. Around the same time Miss X complained to the Council. She said it had failed to provide Y with an education since September 2024 and not communicated with her about their EHC Plan. The Council responded to the complaint at stage one of its complaint process in late August 2025. It accepted it had not provided Y with an education and failed to communicate properly. It apologised and said it was working hard to secure a place for Y. Miss X remained unhappy and asked the Council to escalate her complaint to stage two.
19. The Council held an annual review for Y in September 2025. It decided to amend Y’s EHC Plan and said it would request tutoring for Y.
20. The Council sent its stage two complaint response to Miss X in mid-September 2025. It accepted it had not acted when school A refused to admit Y. It offered Ms X £2,700 for Y’s missed education and £100 for the wider impact of its failings. Miss X refused the payment and complained to the Ombudsman.
21. The Council arranged seven and a half hours a week tuition for Y and put this in place from the start of October 2025. Miss X says Y only received four and a half hours a week. The Council issued an amended EHC Plan on 17 November 2025. The EHC Plan named a “mainstream school or academy”. Miss X continued to dispute the EHC Plan and continued with her appeal to the Tribunal.
22. In May 2026 the Tribunal ordered the Council to amend Y’s EHC Plan and name School C as Y’s placement.

My findings

23. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
24. While the Council upheld Miss X’s complaint I cannot investigate Y’s lack of education during this time. Miss X appealed Y’s EHC Plan to the Tribunal. The law says we cannot investigate any matter linked to an appeal to the Tribunal. Miss X’s complaint about Y’s lack of education is intrinsically linked with her appeal over the placement named in Y’s EHC Plan and I cannot investigate it.

Back to top

Decision

I have ended my investigation. We cannot investigate Miss X’s complaint.

Back to top

Investigator's decision on behalf of the Ombudsman