Summary: Mrs X complained that the Council has failed to provide an appropriate level of service and failed to abide by statutory timescales in respect of her daughter’s special educational needs. We will not investigate Mrs X’s late complaint about delays in the Education Health and Care Plan needs assessment. Nor will we investigate Mrs X’s complaint about the content of her child’s Education, Health and Care Plan. This is because Mrs X appealed to the Special Educational Needs and Disability (SEND) Tribunal. 

The complaint

1. Mrs X complained that the Council has failed to provide an appropriate level of service and failed to abide by statutory timescales in respect of her daughter’s special educational needs. Specifically, she says the Council;
• delayed issuing the Education, Health and Care plan;
• failed to provide required information during the Tribunal process;
• has delayed implementing the Tribunal order; and
• has failed to provide alternative educational provision for her daughter while she has been unable to attend school.
2. As a result, Mrs X’s daughter has missed out on provision which should have been available to her and the Mrs X has incurred financial expense.

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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 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)
6. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal… such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.
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.

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How I considered this complaint

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

Education, Health and Care Plans

10. 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. 
11. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.
12. The whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks.
13. 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.

What happened here

14. Mrs X requested an Education, Health and Care needs assessment for her daughter, Y in January 2023. The Council completed the assessment and issued an EHC Plan in September 2023.
15. The EHC Plan named Y’s current school. Mrs X says the placement broke down and Y stopped attending school in October 2023.
16. In December 2023 Mrs X appealed to the SEND Tribunal. The Tribunal set out a timetable of case management direction and listed a final hearing for 28 November 2024. Mrs X says the Council repeatedly missed the Tribunal deadlines.
17. The Council held an annual review of Y’s EHC Plan in July 2024. By this time Mrs X was paying for private tuition and online learning. She asked for a package of Education Other Than At School (EOTAS). The Council issued an amended EHC Plan naming the same school.
18. Y did not return to the school. Mrs X says the school paid for a small amount of tuition between September and November 2024.
19. At a Tribunal case review hearing on 19 November 2024 the Council accepted EOTAS provision was appropriate for Y. The Tribunal ordered the Council and Mrs X to continue to discuss the provision to be included in the EOTAS package and to try to reach an agreement by 11 December 2024.
20. Mrs X says the Council again missed this and subsequent dates set by the Tribunal. A final hearing took place on 24 February 2024 and the Tribunal issued a decision on 26 February 2025. It ordered the Council to finalise Y’s amended EHC plan, leaving the educational placement blank as Y required an EOTAS package.
21. On 10 February 2025 Mrs X made a formal complaint to the Council about its poor practice, a failure to adhere to or consider the statutory guidelines and the failure to provide an education. Mrs X asked the Council to reimburse the tutoring costs they had incurred and to recognise the trauma and stress they had experienced. She told the Council its delays and failure to provide an education had resulted in a loss of income for the family as they had had to reduce their work hours to provide educational support.
22. The Council responded on 20 March 2025 and apologised for the delay in the EHC needs assessment and the frustration and uncertainty this caused. It noted that at the time of the EHC needs assessment Mrs X had asked the Council to name Y’s current school and that the school could meet her needs. As the school was named in the Plan the Council was satisfied it had secured a full time placement for Y.
23. In relation to the EOTAS package the Council said it had made several referrals to alternative providers between November 2024 and January 2025. And that following the final Tribunal order of 26 February 2025 it had put together the content of the EOTAS package. The Council said the package was agreed in March 2025 and it aimed to have it in place by 24 March 2025.

Analysis

24. As set out above, there are restrictions on the issues we can consider. We expect people to come to us within 12 months of them thinking the Council has done something wrong. Mrs X contacted us in March 2025 so we can consider events since March 2024.
25. We would not therefore investigate Mrs X’s concerns about the time taken to complete the EHC needs assessment and issue a final Plan. The final Plan was issued in September 2023, and it was open to Mrs X to complain to us at that time. We have discretion to consider complaints raised outside the normal time frames where there are good reasons to do so. I do not consider it appropriate to exercise discretion in this instance.
26. Mrs X’s appeal to the SEND Tribunal about the content of the Plan would not have prevented her from complaining about delays in the EHC needs assessment process.
27. The appeal to the SEND Tribunal does however mean we cannot investigate Mrs X’s complaint about missed special educational provision or alternative provision.
28. 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)
29. 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.
30. 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.
31. In this instance Mrs X appealed both the educational provision and the school named in Y’s EHC Plan. We are therefore unable to investigate Mrs X’s concerns about a lack of special educational provision, or alternative educational provision from September 2023 until the final tribunal order on 26 February 2025.
32. Mrs X also complained about the Council’s conduct during the appeal process which she feels has delayed a resolution and cause the family further difficulties. Case law has also confirmed that 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)  
33. I recognise the restrictions on our jurisdiction will be both disappointing and frustrating for Mrs X. Where there is an appeal right, there will unfortunately be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 

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Decision

34. We will not investigate Mrs X’s complaint because she has exercised her right of appeal to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman