Summary: We cannot investigate Mrs X’s complaint about the Council’s failure to secure the provision in her child, Y’s, Education, Health and Care (EHC) Plan. Mrs X appealed to the SEND Tribunal and then a court considered the matter at Judicial Review.

The complaint

1. Mrs X complained the Council failed to secure the provision in her child, Y’s, Education, Health and Care (EHC) Plan.

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The Ombudsman’s role and powers

2. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
3. The courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
4. 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)
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.

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How I considered this complaint

6. I considered evidence provided by the Council and Mrs X as well as relevant law, policy and guidance.
7. Mrs X and the Council have had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Education, Health and Care (EHC) Plans

8. 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 Tribunal or the council can do this. 
9. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan.
10. 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)
11. 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.

What happened

12. The Ombudsman has previously investigated a complaint from Mrs X about her child, Y’s, Education, Health and Care (EHC) provision up to June 2023. The Council issued an amended final EHC Plan in June 2023 which Mrs X appealed the provision in Ys EHC Plan to the SEND Tribunal.
13. Following a Tribunal decision in April 2024 the Council issued a new EHC Plan in May 2024. Mrs X complained to the Ombudsman in January 2025 about the Council’s failure to secure the provision in Y’s June 2023 and May 2024 EHC Plans.
14. In June 2025 Mrs X applied to the High Court for a Judicial Review. The grounds for the claim were the Council’s failure to secure the provision in Y’s EHC Plan.
15. The Court issued a consent order in August 2025 after the Council agreed to make direct payments for the provision in Y’s EHC Plan and reimburse Mrs X for provision she had already paid for.

My findings

16. We cannot investigate Mrs X’s complaint. Mrs X appealed the provision in Y’s EHC Plan to the SEND Tribunal. Mrs X’s complaint about the Council’s failure to secure the provision in Y’s EHC Plan is linked to Mrs X’s disagreement with the provision in Y’s EHC Plan.
17. Following the Tribunal’s decision a court considered whether the Council secured the provision at Judicial Review. We cannot investigate matters which have been considered in court.

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Decision

18. We cannot investigate this complaint. It is not an issue the Ombudsman can deal with.

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Investigator's decision on behalf of the Ombudsman