Summary: Miss X complained the Council did not secure the special educational provision named in her child Y’s Education, Health and Care Plan, and had poor communication when she raised concerns. She said this caused Y to miss education and caused significant uncertainty and frustration. We have ended our investigation because Miss X appealed to the Tribunal about matters connected to her complaint, and it is therefore out of our jurisdiction.

The complaint

1. Miss X complains about the Council’s handling of her child Y’s Education, Health and Care Plan from March 2024. In particular she complains the Council:
1. Failed to secure the special educational provision detailed in Section F of Y’s plan.
2. Had poor communication and complaint handling when she raised concerns about the special educational provision being provided to Y.
2. Miss X says the Council’s handling of the matter caused a loss of special educational provision for Y, and caused her significant uncertainty and frustration.

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The Ombudsman’s role and powers

3. 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.
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. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. However, 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)
6. The courts have said we can decide not to investigate a complaint about any action by an organisation concerning a matter which the law says we cannot investigate. (R (on the application of M) v Commissioner for Local Administration [2006] EHWCC 2847 (Admin))

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How I considered this complaint

7. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
8. Miss X and the Council 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

Law and Guidance

9. 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. 
10. The sections include: 

• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 

11. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
12. There is a right of appeal to the Tribunal against matters including the special educational provision specified in Section F and the school or placement specified in Section I, of an EHC Plan.

What happened

13. This is a summary of the key events. It is not a complete chronology of everything that happened. Where necessary, I have expanded on some of these events in the “Analysis” section of this decision statement.
14. In late 2023 the Council carried out an Education, Health and Care Needs Assessment of Y. It proposed a named mainstream educational setting.
15. Miss X raised concerns about the mainstream setting. She told the Council she thought the setting would not meet Y’s special educational needs. She thought Y should attend a specialist setting.
16. The Council consulted the mainstream setting that Miss X had raised concerns about. The mainstream setting told the Council it could deliver the special educational provisions in section F of Y’s draft EHC Plan.
17. In March 2024 the Council issued Y’s EHC Plan. It named the mainstream setting in section I.
18. A few days after the EHC Plan was issued Miss X told the Council she would appeal section I of the plan. This was because she was concerned the mainstream setting could not meet Y’s special educational needs.
19. Miss X appealed to the Tribunal in July. Her appeal included sections I and F of the EHC Plan. Her reasons for appeal included her opinion Y’s special educational needs could not be met in a mainstream setting. She said the mainstream setting Y was attending was not putting in place the special educational provision in the plan.
20. Miss X raised further concerns with the Council later in the year. She reiterated the mainstream setting was not providing the special educational provision. In October Miss X lodged a formal complaint with the Council about the same matter. The Council responded to her complaint in January 2025.
21. Miss X complained to us in March. The Tribunal hearing happened later in 2025.

Analysis

22. Both elements of Miss X’s complaint are connected to the Council’s decisions and actions regarding its duty to secure Y’s special educational provision.
23. The Council’s duty to secure the special educational provision started when it issued the EHC Plan March 2024. Miss X’s right of appeal commenced at the same time.
24. Miss X’s appeal to the Tribunal was directly connected to her concern the mainstream setting the Council named in the plan could not deliver the special educational provision. Therefore, both elements of her complaint were connected to her appeal.
25. If I investigated Miss X’s complaint, my investigation would overlap with the role of the Tribunal. The courts have established I cannot investigate any matter which was connected to the appeal. Part a) of Miss X’s complaint is therefore out of our jurisdiction for the reasons detailed in paragraphs 4 and 5. Because I cannot achieve a meaningful outcome or make findings on the substantive matter that lies outside our jurisdiction, I will not investigate part b) of Miss X’s complaint for the reason detailed in paragraph 6.
26. For this reason I cannot investigate Miss X’s complaint. I have therefore ended my investigation

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Decision

27. I have ended my investigation because Miss X’s complaint is connected to her appeal to the Tribunal. Her complaint is therefore out of our jurisdiction.

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Investigator's decision on behalf of the Ombudsman