Summary: We will not investigate Mrs X’s complaint about the Council’s failure to provide her child Y with a suitable education. This is because Mrs X has used her right of appeal to the Tribunal and her complaint to us was too connected to her appeal.

The complaint

1. Mrs X complained the Council failed to provide her child Y with a suitable education since December 2023 and refused to investigate her complaint about the matter. She says her child missed out on education, and the Council’s failures have had a detrimental effect on the family. She wants the Council to accept it has failed in its statutory responsibilities, apologise and provide appropriate compensation.

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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’. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. 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). Mrs X complained to us in October 2025 about events going back to December 2023. It was open to Mrs X to come to us sooner and there are no good reasons to consider what happened back to December 2023. However, given Y’s EHC Plan was finalised in July 2024, I have considered what happened since then.
4. 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 and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
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 SEND Tribunal in this decision statement.

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How I considered this complaint

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

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What I found

Education, Health and Care Plan

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.
9. The EHC Plan is set out in sections. Section B of the EHC Plan sets out the child’s special educational needs, section F sets out the special educational provision needed by the child and section I outlines the name and/or type of educational placement. We cannot direct changes to the sections about the child’s needs, education, or the name of the educational placement. Only the Tribunal or the council can do this.

Alternative education provision

10. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.

Background

11. Y started at a new primary school in September 2021. Y had a diagnosis of autism. Y was unable to attend so Mrs X decided to home educate them. Mrs X requested an EHC Pan which was completed in January 2023 which named education other than at school (EOTAS).
12. Mrs X says the EOTAS was not delivered and she complained to the Council. It upheld the complaint and made a payment. It held an annual review in 2024 and agreed to amend the Plan.

What happened

13. The Council issued a new EHC Plan in July 2024. This named a mainstream secondary school which had a special educational needs base. The provision in section F of Y’s Plan included:
• Adults to adapt communication and implement a low-demand communication approach to support interactions, Y’s learning and to follow aspects of the daily routine
• Support for family to develop links with a resourced provision base
• A phased introduction to a resourced provision base
• Support from family to ensure attendance
• Named member of staff to meet and greet Y each morning
• Adults to reduce the demands on Y and give Y control over their routine.
14. In August 2024 Mrs X appealed to the Tribunal about sections F and I of the Plan. Mrs X said the school considered it was not suitable, Y was not on the school roll and Y has not attended.
15. In October 2025 Mrs X and the Council agreed a package of EOTAS for Y and the Tribunal issued a consent order in early 2026, agreeing for the Plan to be amended to EOTAS. A consent order is a legally binding document that records an agreement reached between the parent and the council. It explains the changes agreed to the EHC Plan or the issues that have been resolved. It is signed by a Tribunal Judge to officially bring the appeal to an end.

Analysis

16. Mrs X disagreed with the school named in Y’s Plan. She had a right of appeal to the SEND Tribunal over the school named in the Plan and used that right. Whether the school named in the Plan was a suitable school which Y could attend was a decision for the Council and, once appealed, the Tribunal can come to its own view. Mrs X and the Council came to an agreement which ended the appeal with a consent order.
17. Since the Council issued the amended final EHC Plan in July 2024, Y has not attended school. 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’s disagreement about the special educational provision or the educational placement (section I) in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
18. The period we cannot investigate starts from the date the appealable decision is made and given to the parents. If the parent 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. This means I cannot look at what happened between July 2024, when Mrs X’s right of appeal started, to when the Tribunal issued the consent order in January 2026.
19. The section F provision in Y’s Plan set out the special educational support for them in a school setting. Y’s non-attendance at the school from the point the Council issued the EHC Plan, and their lack of education, is directly linked to the matters Mrs X appealed. This means I cannot look at the Council’s decision to name the mainstream school in the Plan or whether Y should have been provided with alternative educational provision or special educational provision during the appeal period.
20. 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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Decision

21. I have ended my investigation because Mrs X has used her right of appeal and the issues she has raised with us are too closely linked to this appeal right.

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Investigator's decision on behalf of the Ombudsman