Summary: We will not investigate Mrs X’s complaint about alternative education provision. Mrs X had a right of appeal for her children’s Education, Health and Care plans, and there is not enough evidence of fault in the Council’s application of its Section 19 duty to warrant our involvement.

The complaint

1. Mrs X complains the Council refused to provide alternative education for her children who were unable to attend the named schools in their Education, Health and Care (EHC) plans.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. 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)
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. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)

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How I considered this complaint

6. I considered information provided by the complainant and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Mrs X has children with EHC plans. The Council issued the final amended plans for both children in 2025. Both plans named schools for their educational placements. The Council said if she disagreed with the EHC plans, she could appeal, it explained the appeal process to her. Later, Mrs X took her children out of school and asked the Council for alternative education.
9. Mrs X had the right to appeal the Council’s decision regarding the schools named in the plans. Where someone has a right of appeal to a tribunal, the law says we cannot normally investigate. If she disagreed with the schools named in the plans, it was reasonable to expect Mrs X to use her right to appeal the EHC plans to the Tribunal, so we will not investigate this part of her complaint.
10. Mrs X complained the children were unable to attend the schools named in their plans and the Council refused her request for alternative provision. In its response to Mrs X, it said it did not consider it had a duty to provide alternative provision. It said its position was that the children could attend the schools in the EHC plans and it had seen no medical evidence to suggest they could not.
11. Section 19 of the Education Act 1996 says a 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.
12. The Council appropriately considered Mrs X’s request for alternative provision but decided the duty did not apply because they could attend the schools named in their plans. It explained the reasons for its decision to Mrs X. There is not enough evidence of fault in the Council’s actions to justify our involvement, so we will not investigate Mrs X’s complaint.

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Final decision

13. We will not investigate Mrs X’s complaint because she had a right of appeal, and there is not enough evidence of fault in the Council’s consideration of its Section 19 duty to warrant our involvement.

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Investigator's decision on behalf of the Ombudsman