Summary: We cannot investigate this complaint about the Council’s decision not to backdate the complainant’s child’s special educational needs provision. This is because the complainant used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) and this places the matter outside our jurisdiction.

The complaint

1. The complainant, Miss X, complains that the Council is at fault in declining to backdate her daughter’s entitlement to support for her special educational needs provided through Education Otherwise Than at School.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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.
5. 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. Due to the restrictions on our powers to investigate where there is an appeal right, there will 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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How I considered this complaint

7. I considered information provided by the complainant and the Council.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. Miss X’s daughter has special educational needs and an Education Health and Care plan. Miss X disagreed with the initial content of the EHC plan issued in July 2024 and used her right to appeal to the Tribunal. Miss X’s disagreement with the EHC plan has been previously considered by the Ombudsman and will not be revisited.
10. Miss X says the Council decided not to proceed with the appeal process in March 2025. The correspondence shows that it has issued an EHC plan, and that an Education Otherwise Than at School package has been in place since March 2025.
11. Miss X has asked the Council to backdate this entitlement to September 2024 on the basis that, if the Council had not been at fault, provision would have been in place from that point. The Council has declined to do so, but says that it has backdated the entitlement to January 2025, when the child reached statutory school age.
12. The Ombudsman cannot investigate this complaint. We can take no view on whether specific provision should have been in place between September 2024 and March 2025, as this question is related to matters the Tribunal would or could have considered. By law, the Ombudsman cannot investigate such matters from the point at which the EHC plan was issued until the appeal process concludes. This restriction applies even when the appeal does not proceed to a hearing, as was the case here. There is no discretion available to us. We cannot investigate.

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Final decision

13. We cannot investigate Miss X’s complaint because she used her right to appeal to the Tribunal and her complaint concerns related matters.

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Investigator's decision on behalf of the Ombudsman