Summary: Miss X complained the Council failed to provide the occupational therapy support included in her child, Y’s, Education, Health and Care Plan, and its communication with her about this was poor. We cannot investigate the Council’s failure to provide support for Y, because Miss X has appealed the contents of Y’s Education, Health and Care Plan to a tribunal and we cannot investigate any matter connected to a decision that has been appealed to a tribunal. We will not investigate Miss X’s complaint about the Council’s poor communication because it is not proportionate to investigate this issue in isolation.

The complaint

1. Miss X complained the Council did not provide Occupational Therapy (OT) support to her child, Y, as written in their Education, Health and Care (EHC) Plan. She also complained about poor communication from the Council.
2. Miss X said the Council’s actions have negatively impacted Y’s development and caused stress for Y and their family.

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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 investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. (Local Government Act 1974, section 24A(6), as amended)
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). 
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 SEND Tribunal in this decision statement.
8. 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)

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How I considered this complaint

9. I spoke with Miss X and considered information she provided.
10. I considered the information and documents provided by the Council.
11. 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

Education, Health and Care Plans

12. 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.
13. The EHC Plan is set out in sections. Section F of the EHC Plan sets out the special educational provision needed by the child or the young person. Councils have a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan from the date the final EHC Plan is issued. (Section 42 Children and Families Act 2014)

What happened

14. In December 2024 the Council issued Y’s EHC Plan. Section F of Y’s EHC Plan said that Y needed OT support and explained how this should be delivered.
15. In January 2025 Miss X appealed to the Tribunal about the content of Y’s EHC Plan, including the wording of Y’s support in section F.
16. In March 2025 Miss X complained to the Council. She said it had failed to arrange the OT support in Y’s EHC Plan. She said she contacted it about this in December 2024 and February 2025, but the Council told her the support would not be in place until after Easter. She said this was not acceptable.
17. Miss X then complained to us. She said the Council had still not arranged the OT support. She told us she had chased it frequently about this, but it had often not responded to her.

Analysis

Delivery of occupational therapy

18. Miss X appealed to the Tribunal about section F of Y’s EHC Plan.
19. As part of the appeal, the Council has agreed to change the wording of the OT support in section F of the EHC Plan.
20. This means we cannot investigate the delivery of the OT provision because it has been discussed in the appeal. As explained in paragraph five, the law says we cannot investigate anything which is part of, or connected to, an appeal to the Tribunal. This applies even if the Tribunal cannot remedy all the injustice claimed.

Communication

21. As we cannot investigate the delivery of OT, it would be disproportionate to investigate the Council’s communication with Miss X about this issue. Some of this communication is bound to be connected to the appeal, which means we cannot investigate it.

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Decision

22. I have stopped investigating this complaint. We cannot investigate Miss X’s complaint about the Council’s failure to arrange support for her child, Y, because this is connected to her appeal to the Tribunal. We will not investigate her complaint about the Council’s poor communication as some of the issues are likely to be connected to the appeal and it is not proportionate to investigate any remaining issues.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman