Summary: We cannot investigate this complaint about the Council’s Education Health and Care Needs Assessment process and its decision not to assess her child, and its subsequent decision not to make alternative educational provision for the complainant’s child. The complainant has used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) and the Courts have decided that the Ombudsman cannot intervene where the right to appeal has been used.

The complaint

1. The complainant, Mrs X, complains that the Council was at fault in declining to carry out an Education Health and Care Needs Assessment for her child’s needs in relation to special educational needs. Mrs X complains that the Council has failed to make educational provision for her child, and failed to identify and address his special educational needs.

Back to top

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. 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)
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. 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…”.

Back to top

How I considered this complaint

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

Back to top

My assessment

8. The Council’s decision not to carry out an Education, Health and Care Needs Assessment (EHCNA) was communicated to Mrs X on 24 April 2025. Mrs X says this decision was flawed and has used her right of appeal to the Tribunal.
9. Mrs X’s child ceased attending school. She asked the Council to make alternative educational provision for him. The Council declined to do so on the grounds that appropriate education was available to him at the school, Mrs X complains about this decision.
10. We cannot investigate Mrs X’s complaint. She has appealed to the Tribunal against the decision not to carry out an EHCNA. The law says that, where an appeal has been made, the Ombudsman cannot intervene.
11. Neither can we consider whether the Council was at fault in declining to make alternative provision. This complaint turns on whether appropriate education was available at the school. This is not a matter on which we can express a view.
12. 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)
13. 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.
14. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. In this case, 24 April 2025.

Back to top

Investigator's decision on behalf of the Ombudsman