Summary: We will not investigate Mrs X’s complaint the Council failed to provide sufficient funding to ensure her child’s school could deliver the provision set out in their Education, Health and Care (EHC) plan. The matter falls outside our jurisdiction because Mrs X has appealed to the Tribunal.

The complaint

1. Mrs X complains the Council is underfunding provision set out in section F of her children Education, Health and Care (EHC) plan. She says professional reports endorse fulltime adult support for her child. Mrs X says the Council’s funding does not cover the one-to-one Teaching Assistant or specialist Speech and Language support to meet her child needs. She wants the Council to review its funding for her child’s provision in line with the costed provision map and commit to her child receiving the dedicated support they need.

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The Ombudsman’s role and powers

2. 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. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
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.

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How I considered this complaint

5. I considered information provided by the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

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. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
9. The Council issued the final amended EHC Plan following annual review to Mrs X on 6 January 2025. This is when appeal rights to the Tribunal became active in this case. Mrs X has confirmed she has appealed the provision in section F of her child’s EHC plan; including the Council’s underfunding of this provision and the lack of Speech and Language (SALT) provision. Therefore, the delivery of this provision is not separable from her appeal to the SEND Tribunal, which places her complaint out our jurisdiction.

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Final decision

10. We will not investigate Mrs X’s complaint because the issues raised are not separable from her appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman