Summary: We will not investigate this complaint about the Council’s action relating to an Education, Health and Care Plan. This is because we cannot investigate a complaint if someone has appealed to a tribunal about the same matter, there is not enough evidence of fault to justify investigating, the Information Commissioner’s Office is placed to consider a complaint about data protection and it is not a good use of public resources to investigate how the Council dealt with Mrs Y’s complaints.

The complaint

1. Mrs Y has complained the Council:
• Tried to send her child to a school which could not meet their needs and refused to name the placement Mrs Y’s preferred in her child’s Education, Health and Care Plan (EHC Plan);
• The Council breached data protection with information about another person being sent to her;
• Failed to provide her with information about her right to appeal the EHC Plan until after a Special Admissions Meeting, despite the EHC Plan having been issued several weeks before; and
• Communicated poorly, with her emails not being responded to about her complaints and not receiving a response to her complaint within timescales agreed.
2. Mr Y says she feels the Council is not acting in her child’s best interests and this has had an impact on her wellbeing.

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The Ombudsman’s role and powers

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. 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. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

6. We normally expect someone to refer the matter to the Information Commissioner (ICO)if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
7. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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How I considered this complaint

8. I considered information Mrs Y and the Council provided and the Ombudsman’s Assessment Code.

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My assessment

9. Mrs Y has complained about the Council’s decision to name mainstream provision for her child in Section I of her EHC Plan, when the mainstream schools in the area could not meet her child’s needs and the Council’s refusal to name the specialist school placement Mrs Y’s preferred in the child’s EHC Plan.
10. 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)
11. As Mrs Y is appealed the content of the EHC Plan issued in March and later amended an reissued in June 2025 to the SEND Tribunal, we cannot investigate her complaint about how the Council completed the contents of the EHC Plan.
12. Mrs Y has also complained that the Council sent her information relating to another person and therefore breached data protection legislation. The ICO is the UK’s independent authority set up to uphold information rights. It promotes openness by public bodies and protects the privacy of individuals. It deals with complaints about public authorities’ failures to comply with data protection legislation. This includes disclosing information in error.
13. There is no charge for making a complaint to the ICO, and its complaints procedure is relatively easy to use. Where someone has a complaint about data protection, the Ombudsman usually expects them to bring the matter to the attention of the ICO.
14. This is because the ICO is in a better position than the Ombudsman to consider such complaints. In this case the Council has already made a referral for this data breach to the ICO, I would therefore consider it reasonable for Mrs Y to raise any concerns she has about the data breach with the ICO. We will not investigate this complaint.
15. Mrs Y has also complained the Council failed to provide her with information about her right to appeal the EHC Plan when it was issued in March 2025 and that she only became aware of her right to appeal after a Special Admissions Meeting was held in early April to try to find a suitable school place for her child.
16. The Council provided Mrs Y with information about her right to appeal to the SEND Tribunal in a letter issued with the child’s EHC Plan in March 2025. It is agreed that it also told Mrs Y about her right to appeal the EHC Plan following the Special Admissions Meeting in April and when a school was named within an amended EHC Plan in June 2025. We are unlikely to find that Mrs Y did not know she had a right of appeal. As there is not enough evidence of fault to justify investigating, we will not investigate this complaint.
17. Mrs Y also complained about the Council’s poor communication where her emails about her concerns were not responded to and she says she had to remind the Council to respond to her complaint before its deadline to respond passed.
18. As we are not able to investigate the substantive issues in this complaint, it is not a good use of public resources to investigate how the Council dealt with and responded to Mrs Y’s complaints and correspondence. We will not investigate.

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Final decision

19. We will not investigate Mrs Y’s complaint because we cannot investigate a complaint if someone has appealed to a tribunal about the same matter, there is not enough evidence of fault to justify investigating, there is another body better placed to consider the complaint about data protection and it is not a good use of public resources to investigate how the Council dealt with Mrs Y’s complaints.

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Investigator's decision on behalf of the Ombudsman