Summary: We upheld part of Ms X’s complaint regarding her child’s Education, Health and Care Plan and about the Council’s communication because the Council agreed to apologise and act to clarify its communication with her. We cannot investigate most of Ms X’s complaint because she appealed to a court and a tribunal. We will not investigate the remainder because the tests in our assessment code are not met.

The complaint

1. Ms X complained the Council:
1. failed secure the content of her child, Y’s, Education, Health and Care (EHC) Plan between August 2024 and May 2025;
2. made a final EHC Plan which failed to specify Y’s provision; and
3. failed to communicate with her about the matter.
2. Ms X said this caused her frustration, distress and uncertainty. Ms X said Y missed out on provision they were entitled to.

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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 a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)
5. 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)
6. We have the power to start or end an investigation into a complaint about actions the law allows us to investigate. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been mentioned as part of the legal proceedings regarding a closely related matter. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended, section 34(B))
7. 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.
8. 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)
9. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect 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 an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
10. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

11. I considered information provided by the complainant and the Council.
12. I considered the Ombudsman’s Assessment Code.

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My assessment

13. Ms X has a child, Y. In late July 2024, the Council made a final Education, Health and Care (EHC) Plan for Y naming EOTAS (Education Otherwise than at School).

Delivery of section 42 of Y’s EHC Plan

14. We cannot investigate most of Ms X’s complaint about the Council’s failure to secure the content of her child’s EHC Plan. This is because Ms X initiated court action about the matter. Although the Council conceded before the courts in January 2025, the final court order is not yet available. The law says because Ms X used her right to take the matter to court, the Ombudsman cannot investigate those same matters.
15. Ms X also complained about textbooks and SLT provision not provided to Y since November 2024. I consider these matters either have been or could have been raised during the court proceedings. Consequently, we will not investigate this matter.

Content of Y’s EHC Plan

16. Ms X was dissatisfied with the content of Y’s EHC Plan. She explained the wording in the plan was not specific enough to deliver a full package of support to Y. This included practical science kits and textbooks.
17. The delivery of Y’s EHC Plan either has been or could have been considered by the courts, and so we will not investigate this matter.
18. The Ombudsman has no power to instruct the Council to make changes to the provision in the EHC Plan. Only the Council or the SEND Tribunal can do this. Ms X has used her right to appeal the content of Y’s EHC Plan to the SEND Tribunal. Therefore, we cannot investigate this matter.

Communication with Ms X

19. Ms X complained the Council failed to communicate with her effectively. She said the Council misrepresented its communication with her and attempted to place blame on her for its own failings.
20. The Council apologised in its final complaint response and agreed its communication was, at times, not sufficient. Consequently, an investigation into that matter is unlikely to achieve any additional outcome, and we will not investigate.
21. In addition to its apology, the Council told Ms X it would create a new “Memorandum of Understanding” (MOU) about how it would communicate with her moving forward.
22. If we were to investigate it is likely we would find fault causing the complainant injustice because:
1. In its complaint response, the Council told Ms X it would set-up a meeting by the end of February 2025 to discuss the MOU.
2. During my enquiries, the Council said as of May 2025 it had not met with Ms X and the MOU was still outstanding.
23. We therefore asked the Council to consider remedying the injustice caused to Mrs X by the delay in meeting with her and creating an updated MOU.

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Agreed action

24. Within six weeks of our final decision the Council agreed to:
• write to Ms X and apologise for the frustration and uncertainty caused by the delay in creating a new Memorandum of Understanding; and
• hold a meeting with Ms X to discuss the Memorandum of Understanding.
25. Within 12 weeks of our final decision the Council agreed to create and send Ms X an updated Memorandum of Understanding regarding the Council’s communication with her.

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Final decision

26. We upheld part of Ms X’s complaint and the Council agreed to remedy the injustice caused. We cannot investigate most of Ms X’s complaint because she appealed to a court and a tribunal. We will not investigate the remainder because the tests in our assessment code are not met.

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Investigator's decision on behalf of the Ombudsman