Summary: We cannot investigate most of Miss X’s complaint about her child’s Education, Health and Care Plan because she appealed to a Tribunal. We cannot investigate the remaining matters because they are late.

The complaint

1. Miss X complained the Council failed to:
• name an appropriate school in section I of Y’s Education, Health and Care (EHC) Plan in September 2023;
• provide a suitable education to Y;
• obtain an educational psychology report;
• communicate with her about Y’s EHC Plan; and
• engage in the Tribunal process correctly in 2022.
2. Miss X said the matter caused her frustration, distress and uncertainty. She said the issues caused Y to miss out on education.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
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. 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)
7. 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)
8. We cannot investigate the council’s conduct during an appeal. This includes anything a complainant could have raised with the tribunal at any stage of the appeal, or which the tribunal has considered on its own initiative, or which could have been a part of the tribunal’s deliberations in resolving the appeal (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)  

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How I considered this complaint

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

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My assessment

11. We cannot investigate most of Miss X’s complaints because they relate to matters that a Tribunal has or could have considered as part of its own process. This includes:
• the named school in section I of Y’s EHC Plan in September 2023. Because Miss X appealed the content of Y’s EHC Plan to the Tribunal, the law says we cannot investigate. This includes any consultations or communication between Miss X and the Council. The matters are too closely related, and so we cannot investigate;
• the Council’s failure to provide suitable education to Y. The Council named a school in Section I in September 2023 which Miss X said was unsuitable. Miss X said she would not send Y to the school because it was unsuitable. The reason Y did not receive an education is too closely related to the reason Miss X appealed (the named school). Therefore, we cannot investigate this matter;
• any issues with the educational psychology service. The consequence of any missing reports or the accuracy of any reports can be or has been considered by the Tribunal. The Tribunal has wide ranging powers to order reports. Consequently, we cannot investigate this matter;
• the Council’s communication. This includes the school consultations. The consequence of the Council’s poor communication was that, in Miss X’s view, the final EHC Plan named an inappropriate school. Miss X appealed this to the Tribunal. Therefore, this matter is too closely related to the issue that was appealed, and we cannot investigate; and
• the alleged failure to engage in the Tribunal process in 2022. The Ombudsman has no authority to investigate this matter as explained at point 8 of this decision. It is for the Tribunal to manage its own process and how the Council engaged with it. Therefore, we cannot investigate this complaint.
12. Miss X also complained about other matters including a slight delay in the Council issuing a draft EHC Plan in July 2023, a lack of education for Y before September 2023, and about the Council’s poor communication.
13. Miss X brought her complaint to the Ombudsman in January 2025. The law says we cannot investigate matters that are older than 12 months from the date a complaint is brought to us unless we decide there are good reasons. I have seen no good reasons Miss X could not have brought these matters to the Ombudsman sooner. Therefore, we cannot investigate matters that happened before January 2024.

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Final decision

14. We cannot investigate most of Miss X’s complaint because she appealed to a Tribunal. We cannot investigate the remaining matters because they are late.

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Investigator's decision on behalf of the Ombudsman