Summary: We cannot investigate this complaint about the Council’s handling of an Education, Health and Care Plan. This is because 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. Mrs X complains about the Council’s handling of her child’s Education Health and Care (EHC) plan and educational provision. She says the Council’s decisions and actions have had a detrimental impact on her child’s education. Mrs X also complains about how the Council handled her complaint about the matter.

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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. 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…”.
6. 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 no worthwhile outcome achievable by our investigation. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

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

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My assessment

8. Mrs X says she is not satisfied with the provision detailed in Section F of the EHC plan. The plan, issued in September 2025, specifies Education Other Than At School (EOTAS) with alternative provision and home tutoring in Section F.
9. In December 2025 Mrs X appealed to the Tribunal about her child’s EHC plan and the provision detailed in Section F. On matters that relate to the content of the EHC plan, Mrs X used her right of appeal to the Tribunal. 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. As such, the Ombudsman cannot consider this part of the complaint.
10. Mrs X asked for the Council to increase alternative provision sessions. The Council decided they would not offer an increase in alternative provision and instead offered an increase in home tutoring. This process was outside the usual review process but at the time of complaining to us, it did not result in any changes to the EHC plan or delivery of provision.
11. Discussions and offers between the Council and Mrs X were about changes to provision. Although Mrs X was dissatisfied with the process and outcome of these discussions, she has appealed to the Tribunal and this is the correct recourse for these matters. We will not investigate this part of the complaint as there is no worthwhile outcome the Ombudsman could achieve.
12. Mrs X complains about the Council’s handling of her complaint. It is not a good use of our resources to investigate how a Council has handled a complaint if the substantive matter does not fall to be investigated. That is the case here.

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Final decision

13. We cannot investigate Mrs X’s complaint because she has used her right of appeal to the Tribunal. We will not investigate part of the complaint as we could not achieve a worthwhile outcome.

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Investigator's decision on behalf of the Ombudsman