Summary: We cannot investigate Mr X’s complaint about the Council’s delay in transferring his child to an educational establishment. This is because he has used his right of appeal to a tribunal about the same matter and the law does not allow us to investigate in these circumstances.

The complaint

1. Mr X complained that the Council delayed in arranging for his child, Y, to attend an educational establishment for 4 months. Mr X stated that this caused emotional harm and distress to Y. Mr X would like the Council to compensate the educational establishment for any missed funding. He would also like the Council to supply counselling to assist with Y’s mental health following the delay.

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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 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).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

5. I considered information provided by the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Mr X’s child, Y had 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. 
8. Mr X appealed to the Tribunal regarding the content of Y’s EHC Plan. The hearing took place in spring 2025.
9. We cannot investigate Mr X’s complaint the Council delayed arranging a transfer for Y to a different educational establishment before the Tribunal made a ruling on that issue. As explained in paragraph three and four, we cannot investigate complaints when someone has appealed about the same matters at tribunal and those matters in this complaint are not separable from the appeal.
10. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. The period that we cannot investigate ends when the Tribunal comes to its decision. For the reasons I have highlighted, in particular case law at paragraph four, nor can we investigate Mr X’s complaint regarding the council’s actions during the appeal because the Tribunal has extensive case management powers to address these issues on its own initiative.

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Final decision

11. We cannot investigate Mr X’s complaint about a delay in transferring his child to an educational establishment. This is because he has used his right of appeal to a tribunal about the same matter.

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Investigator's decision on behalf of the Ombudsman