Summary: We will not investigate Miss X’s complaint about the Council’s educational provision to her two children because she has rights of appeal and because there is not enough evidence of fault causing significant injustice.

The complaint

1. Miss X complains the Council:
• Did not provide alternative provision to her two children from March to May 2025
• Did not carry out an annual review of their Education Health and Care Plans (EHCPs) in March 2025 and delayed this until October 2025
• Named a school in both EHCPs by letter in May 2025 unlawfully
• Issued final EHCPs that she is unhappy with
• Threatened action if she did not ensure her children attended school
• Shared her children’s data without her consent
• Refused to provide a different co-ordinator after Miss X lost faith in the current one.

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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’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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. 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…”.
7. 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)
8. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)

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How I considered this complaint

9. I considered information provided by Miss X and the Council.
10. I considered the Ombudsman’s Assessment Code.

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My assessment

11. The Council provided a tutor for Miss X’s children but they resigned in March 2025. The Council offered a new tutor promptly but Miss X refused as she considered the tutor unsuitable. The Council then found a tutor Miss X was happy with in May 2025. While Miss X was entitled to refuse the first tutor offered, as the Council arranged a tutor it considered suitable in a timely manner, there is not enough evidence of fault to justify an investigation.
12. The Council accepts it failed to review the children’s EHCPs in March 2025. It apologised, explained why this happened and arranged the review for October 2025. Following the October review the Council did not make any substantive changes to the EHCPs. I therefore consider any injustice is not significant enough to justify our involvement.
13. The Council has provided copies of letters sent to Miss X in May 2025 notifying her of its decision to name a school in both EHCPs. Although Miss X says she did not receive these letters, the Council has provided evidence it met its duty to send them. Miss X has a right to appeal if she is unhappy with the Council’s decision and she can ask the Tribunal to consider a late appeal. It is reasonable for Miss X to use the appeal rights provided and therefore I will not investigate.
14. Miss X’s complaint that the Council followed the wrong process in naming schools is not separable from any appeal she makes to the Tribunal about the schools named. Therefore I will not investigate.
15. The Council has provided copies of letters to evidence it issued final EHCPs and letters giving appeal rights in March 2025. It issued a new final EHCP for one child in December 2025 and gave appeal rights. It also issued a decision to maintain the EHCP for the other child in November 2025 and gave appeal rights. If Miss X is unhappy with the EHCPs issued it is reasonable for her to use her rights of appeal and so I will not investigate.
16. Councils have a duty to identify children out of school and consider action if they believe a child should be attending school. This may include issuing a notice to the parent, issuing a school attendance order or prosecuting the parent. As the Council considered the children should be in school it was entitled to warn of action for non attendance. There is not enough evidence of fault to justify an investigation.
17. Miss X’s complaints that the Council shared her children’s data in error is better dealt with by the Information Commissioner’s Office. Therefore I will not investigate.
18. Although Miss X wanted a different co-ordinator the Council gave reasons why it considered a change was not necessary. This is a decision the Council was entitled to make. I cannot questions the Council’s judgement where there is no evidence of fault in the decision making process. There is not enough evidence of fault to justify an investigation.
19. Miss X complained to us on 11 November 2025. In her complaint, Miss X has referred to matters that arose before November 2024. For completeness, I note these complaints are late and there is no good reason why Miss X could not have contacted us sooner. Therefore I will not investigate these matters.
20. In April 2026 Miss X told us about new matters arising. These occurred after the Council’s final response of 29 October 2025 and after Miss X’s initial complaint to us. I will not investigate these complaints as they are premature. Miss X will need to complete the Council’s complaints process and then raise new complaints to us if she remains unhappy.

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Final decision

21. We will not investigate Miss X’s complaint because she has rights of appeal and because there is not enough evidence of fault causing significant injustice.

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Investigator's decision on behalf of the Ombudsman