Summary: Mrs X complained about the Council’s failure to deliver special educational provision included in her daughter’s (Y) Education Health and Care Plan. Mrs X also said the Council had failed to provide alternative education for Y when she was out of school, to carry out Y’s Education Health and Care needs assessment and communicate with her adequately. She also complained about the quality of the Educational Psychology advice for Y. We cannot investigate this complaint as the matters complained about were either part of Mrs X’s appeal to the Special Educational Needs and Disabilities Tribunal or are too closely linked to the appeal.

The complaint

1. Mrs X complains about the Council’s:
• failure to ensure delivery of special educational provision included in Y’s Education, Health and Care (EHC) Plan issued in December 2024;
• refusal to carry out Y’s EHC needs assessment;
• refusal to offer Y alternative provision;
• unclear communication.
2. Mrs X also complains about the quality of Educational Psychology (EP) statutory advice.
3. Mrs X says the Council’s failings caused her distress, frustration and uncertainty.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. In determining whether to initiate, continue or discontinue an investigation we act in accordance with our own discretion, subject to the provisions of sections 24A, 26 and 26D of the Local Government Act 1974. (Local Government Act 1974, section 24A(6), as amended)
6. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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)
8. 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.
9. 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.
10. 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

11. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
12. Mrs X and the organisation had an opportunity to comment on my draft decision.

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What I found

Law and guidance

13. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the SEND Tribunal in this decision statement.
14. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued. (Children and Families Act 2014 Section 51(2))

What happened

15. In mid-December 2024 the Council issued Y’s final EHC Plan.
16. At the end of January 2025 Mrs X complained to the Council about non-delivery of all special educational provision included in Section F of Y’s EHC Plan. The Council responded two weeks later and provided its stage two response at the beginning of April 2025.
17. Mrs X appealed Sections B and F to the SEND Tribunal at the beginning of February 2025:
1. Mrs X queried the extent of Y’s needs described in her EHC Plan. She claimed the Council failed to carry out necessary assessments and the parents had to fund diagnostic assessments. She asked the SEND Tribunal to order an assessment of Y’s physical and sensory needs. Mrs X asked for specific changes to Section B of Y’s EHC Plan but also stated she would make further requests after receiving extra evidence;
2. Mrs X challenged the special educational provision included in Section F of Y’s EHC Plan, as it was not detailed, specific or quantified. Mrs X said she would request amendments following extra evidence or through the working document process.
18. A few months after raising her appeal Mrs X added Y’s school placement to the issues she was challenging. The SEND Tribunal extended Mrs X’s appeal to Section I in mid-June 2025.

Analysis

19. We generally would not investigate a complaint when the issues complained of are matters which could have been appealed to the SEND Tribunal. We have no discretion to investigate any issues which were part of Mrs X’s appeal. Besides, the courts have found we cannot investigate any matter closely linked to the matters under appeal.
20. Mrs X had the right to appeal Sections B, F and I of Y’s EHC Plan from mid-December 2024, when the Council issued the plan. She lodged her appeal against Sections B and F shortly after receiving Y’s final EHC plan. A few months later she extended her appeal to Section I.

Refusal to carry out Y’s EHC needs assessment

21. The Council’s decision refusing to carry out an EHC needs assessment can be appealed to the SEND Tribunal. We normally would not investigate any issues which can be challenged through an appeal.

Quality of EP statutory advice

22. Mrs X appealed Sections B and F of Y’s EHC Plan, which reflected the content of the EP statutory advice for Y. Therefore during its consideration of Mrs X’s appeal the SEND Tribunal will decide whether the EP statutory advice was satisfactory in assessing Y’s needs and describing provision needed to address them. As this matter is part of Mrs X’s appeal, we have no jurisdiction to look at it.

Non-delivery of special educational provision

23. As explained in paragraph seven we normally cannot investigate any issues which are closely linked to the appealed matters.
24. Mrs X considered Sections B and F of Y’s EHC Plan inadequate. Section B, Mrs X said, failed to describe Y’s needs accurately. Section F failed to specify provision needed to address Y’s special educational needs. Besides Mrs X referred to further assessments and asked the SEND Tribunal to order an assessment for Y’s physical and sensory needs. Thus the extent of the appeal was not determined in the application for appeal.
25. Because of the extent of Mrs X’s challenge to Sections B and F and its open-ended nature, looking at non-delivery of special educational provision for Y would be too closely linked to the appeal issues. Our investigation would be at risk of interfering with the SEND Tribunal jurisdiction.

Alternative provision

26. The courts explained an appeal against section I of a child’s EHC plan refers to a council’s decision to name an unsuitable school or its failure to act to name a suitable school. The consequence of such decision might be that the council fails for a period of time to discharge its duty to provide alternative education. The courts clarified the Ombudsman had no jurisdiction to investigate the consequences of a decision if investigation of the decision itself was excluded.
27. If a person disagrees with the placement named in an EHC plan we would generally not remedy a loss of education after the date the right of appeal was engaged.
28. Mrs X had the right to appeal Y’s EHC Plan from December 2024. From January 2025 Y’s school attendance was progressively declining and from September 2025 Y stopped attending the school. Because Mrs X could have appealed Y’s EHC Plan from December 2024 and did so, we cannot look at the Council’s actions or failure to act regarding alternative provision for Y.

Communication

29. As I will not investigate other issues of this complaint, it would be disproportionate to look at how the Council communicated with Mrs X.

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Decision

30. I will not investigate this complaint as some matters complained about are either too closely linked to the appeal to the SEND Tribunal or could have been appealed. I cannot investigate the issues which have been appealed to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman