The Ombudsman's final decision
Summary: We have ended this investigation. Ms X should have complained to us sooner and we cannot investigate Ms X’s concerns about her child, Y’s, educational placement or lost education because she had already used her right of appeal to the special educational needs and disabilities (SEND) Tribunal. This is because the Ombudsman cannot investigate matters which have been appealed to a Tribunal, or which are linked to an appeal.
The complaint
Ms X complained the Council failed to provide her child, Y, with a safe and suitable educational placement and failed to provide Y with a suitable education for over 18 months when Y stopped attending school between September 2023 and April 2025. Ms X said Y lost education to which they were entitled and caused the whole family distress.
The Ombudsman’s role and powers
The law says we cannot investigate a complaint when someone has used their right of appeal, reference or review to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended) 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.
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)
How I considered this complaint
I considered evidence provided by the Council and Ms X and spoke to her on the telephone. I also considered relevant law, policy and guidance.
Ms X and the Council had an opportunity to comment on my draft decision. I considered comments received before making a final decision.
What I found
Relevant law and guidance 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 SEND Tribunal or the council can do this. Section I sets out the name and/or type of school, section F sets out the special educational provision needed by the child or young person and section B sets out their special educational needs.
What happened Y is of secondary school age and has special educational needs including autism spectrum disorder (ASD) and difficulties with regulating their emotions and sensory processing. Y had an Education, Health and Care (EHC) Plan.
Ms X told me and provided evidence that there was confusion about which school Y should attend from September 2023. Ms X had concerns about Y attending a special secondary school, School 1, from Autumn 2023 and Y did not go. Ms X was concerned about Y’s lack of education. Ms X said around this time there were changes in the family’s circumstances and it affected Y’s mental health and her physical health.
In March 2024 the Council issued Y’s final amended EHC Plan. Section I named School 1 and section F included school-based provision to support Y’s communication and social skill needs. Ms X appealed to the SEND Tribunal about Y’s educational placement, educational needs and special educational provision.
Ms X had continued concerns about Y attending School 1, so they did not go. Ms X was concerned about Y’s lack of education in the meantime. Ms X said she tried to complain to the Council but the Council said it could not respond through its complaints procedure because of her current Tribunal appeal.
In March 2025 the Council issued Y’s final amended EHC Plan which named a special school, School 2 in section I. Y started to attend School 2.
In July 2025 the SEND Tribunal hearing was held and it issued a consent order. The Council issued Y’s final amended EHC Plan in line with the Tribunal order.
My findings
Late complaint 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) Ms X was aware Y was not attending School 1 or receiving an education in September 2023. Ms X did not complain to the Ombudsman about this until November 2025 and I see no good reason why she did not complain sooner. I did not use my discretion (my choice) to investigate from September 2023. It was reasonable to investigate from March 2024 when the Council issued Y’s final amended EHC Plan, which was relevant to the issues that are not late.
Education There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
The courts have established that if someone has appealed to the SEND Tribunal or reasonably could have done so, 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) 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 a new appealable decision is made.
Only the Council or the SEND Tribunal can say whether a school is suitable. We cannot decide what school a child should attend. The Tribunal was the right route for Ms X to challenge the Council’s decision to name school 1 in Y’s EHC Plan. As a result, I have not investigated that part of her complaint about whether School 1 was a safe and suitable placement.
Ms X’s complaint was also about Y’s lack of education which was linked to, or was a consequence of, Ms X’s disagreement about Y’s educational placement in their March 2024 final amended EHC Plan. Therefore, I cannot investigate it.
This restriction starts from March 2024 and ends when the Council issued Y’s final amended EHC Plan in March 2025.
Decision I have ended this investigation because Ms X could have complained sooner and she used her right of appeal to the SEND Tribunal.
Investigator's decision on behalf of the Ombudsman