Summary: Miss X complained the Council failed to provide a suitable school placement for her son. The Ombudsman is unable to consider her complaint as Miss X used her right of appeal and other matters are closely connected to the matters appealed of and so we would not investigate them.

The complaint

1. Miss X complained the Council failed to provide a suitable school placement for her son.
2. She says this caused him to miss a term of education including SEN provision.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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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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.

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What I found

EHC 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. 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. 

Transfer of EHC Plan between councils 

9. Where a child or young person moves to another council, the ‘old’ council must transfer the EHC Plan to the ‘new’ council. The new council must make sure the provision in the EHC Plan begins on the day of the move or within 15 working days of becoming aware of the move if this is later. The new council must review the EHC Plan either within 12 months of it last being reviewed or three months of the date of the transfer, whichever is the later date. (Section 15 Special Educational Needs and Disability Regulations 2014)  

Appeal rights

10. 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 a 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;
• amendment to these elements of an EHC Plan;
• decision not to amend an EHC Plan following a review or reassessment; and
• decision to cease to maintain an EHC Plan.

The Ombudsman’s jurisdiction when appeal rights have been engaged and relevant caselaw

11. 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)
12. 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.
13. 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. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.

Key facts

14. This section sets out the key events in this case and is not intended to be a detailed chronology.
15. Miss X’s son, Z, moved to live with family in Medway in April 2025. Before his move he was at a mainstream school and had an EHC Plan. The previous Council wrote to Medway and sent a copy of his EHC Plan prior to his move.
16. The Council offered Z a place at a mainstream school to start the day after his move. Miss X was not happy with the placement and so Z never attended the school even though the place remained available to him. Miss X says that she was in contact with the school and it told her it was unable to meet Z’s special educational needs. Miss X says this is the reason she did not send her son to the school.
17. In May, the tribunal accepted Miss X’s late appeal regarding the EHC Plan issued by the previous council. Miss X appealed sections E, F and I as well as the social and health care sections.
18. The Council initially said it would review Z’s EHC Plan in October 2025 which would be a year since the last annual review. However, in August it said it would carry out a new assessment of Z’s needs. The Council also agreed to provide tuition for Z because he was not attending school. One to one online tuition of three hours a day began in September.
19. Miss X was in contact with tribunal regarding the appeal of the EHC Plan. Due to Z moving to a new local authority area, the respondent was changed to Medway Council.
20. Following the needs assessment, the Council issued a draft EHC Plan in February 2026. In March, the tribunal made its decision and as well as making changes to sections E and F, it also agreed Z should attend a special school. The Council is still in the process of finding Z a place at a special school.

Analysis

21. As explained at paragraphs 10-12 above, there are restrictions on the matters the Ombudsman can investigate. In this case, Miss X used her right of appeal in respect of the EHC Plan issued for Z in October 2024. As a result, we cannot investigate any matter that was part of the appeal.
22. In respect of the actions by the Council following Z’s move and whether it reassessed his EHC Plan in a timely manner, I am using the Ombudsman’s general discretion not to consider these matters. Miss X says that she did not send Z to the school following his move because it was unable to meet his needs. Her decision was based on issues relating to his special educational needs and as those matters are related to the subject of her appeal, I consider we would be in danger of considering matters that have been considered by the tribunal.

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Decision

23. I am not persuaded there are matters that can be separated from the issues that have been appealed to the Tribunal and so I will not consider the complaint further.

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Investigator's decision on behalf of the Ombudsman