Summary: We will not investigate this complaint that the Council failed to secure educational and special educational provision for the complainant’s child. Investigation of the period before the Council issued an amended Education Health and Care plan is not warranted because it would not lead to a different outcome. We cannot investigate later matters because the complainant used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability).

The complaint

1. The complainant, Mrs X, complains that the Council failed to secure educational and special educational provision for her child.

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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 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 investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6), section 34(B))
4. 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)
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. 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)
7. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).

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How I considered this complaint

8. I considered information provided by the complainant and the Council.
9. I considered the Ombudsman’s Assessment Code.

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My assessment

10. Mrs X’s child, who I will refer to as Y, has special educational needs and an Education Health and Care (EHC) plan. Mrs X complains that the Council has been at fault in the management of Y’s access to education, and that this fault has denied him educational provision for more than 12 months. Her complaint to the Council related to the lack of provision from September 2025, so provision before this date will not be considered.
11. Mrs X specifically complains that the Council delayed issuing Y’s amended EHC plan for transfer to a new school in September 2025. The Council has accepted that this was the case, apologised and offered a payment of £500 in recognition of the fault, as well as £300 for unnecessary distress. This is in line with guidance issued by the Ombudsman and is an appropriate remedy in the circumstances of the case. Investigation of this aspect of Mrs X’s complaint would not lead to a different outcome and is not therefore warranted.
12. Mrs X further complains that the school named in Y’s EHC plan cannot meet his needs. She says he cannot attend, and the Council has failed to make appropriate alternative provision for him, or delivered the provision set out in the EHC plan. She says is has also failed to organise a co-production meeting with her, or set out a timeline for Education Otherwise Than at School.
13. We cannot investigate these matters. This is because Mrs X has used her right to appeal to the Tribunal against the school named in the EHC plan. The law provides that we cannot investigate a complaint about a matter which has been the subject of an appeal. The period we cannot investigate starts from the date the appealable decision was made and ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded.
14. 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. This means that if a child is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent’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.
15. Whether the school named in Y’s EHC plan could meet his needs is clearly a matter which the Tribunal could have considered. The Ombudsman cannot consider it. We can therefore take no view on whether the Council was at fault in the period following the issue of the EHC plan. The matters about which Mrs X has complained are not separable.

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Final decision

16. We will not investigate Mrs X’s complaint because our intervention would not lead to a different outcome, and Mrs X has used her right to appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman