Summary: We will not investigate this complaint about failure to make special educational provision for the complainant’s daughter. Part of the complaint is late and there are no good reasons to investigate this aspect of it now. We cannot investigate the remaining aspects of the complaint because Mrs X has used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability), and we cannot achieve the outcomes she is seeking.

The complaint

1. The PA complains that the Council has failed to ensure her child has had access to the special educational provision to which she is entitled, and has failed to provide her with accurate information.

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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 late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. We cannot investigate a complaint if it is about a personnel issue. (Local Government Act 1974, Schedule 5/5a, paragraph 4, as amended)
5. 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)
6. 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.
7. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal…such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.

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How I considered this complaint

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

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My assessment

10. Mrs X says she moved to the Council’s area in August 2023. She complains that, despite the fact that her child had an EHC plan, the Council failed to make any educational provision for her in September and October 2023.
11. Mrs X further complains about the process leading to the issue of her child’s amended EHC plan in February 2025 in preparation for phase transfer in September 2025. She complains that two officers misled her and that the process of consulting potential placements was flawed. She says that, as a result of the fault on the Council’s part, no place was identified for her child and the final EHC plan issued in February 2025 named only an inappropriate type of setting in Section I.
12. In settlement of her complaint, Mrs X wants the Council to agree to make specific provision for her child, and to take disciplinary action against two officers. She also wants reimbursement of costs she says she has incurred in the course of her appeal to the Tribunal, and changes in the arrangements for her communication with the Council.
13. The Ombudsman will not investigate Mrs X’s complaint. The complaint about the events of 2023 is late. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. There are no good reasons for us to consider these matters now and we will not do so.
14. We cannot investigate matters relating to the production or content of the 2025 EHC plan. The Ombudsman investigates complaints about councils as corporate bodies, not about individuals. We cannot recommend disciplinary or other action in respect of individual officers.
15. The content of the EHC plan, and matters relating to it, do not fall to be investigated. The Council had the right to issue the EHC plan without naming a specific setting in Section I and the Ombudsman cannot criticise it for doing so.
16. Mrs X says she has used her right to appeal to the Tribunal, and this is the appropriate forum to consider and determine the provision and setting for Mrs X’s child’s education. The courts have decided that the fact that the appeal has been made means the Ombudsman cannot consider matters which relate to the EHC plan content, matters which fall to the Tribunal to consider, or which the Tribunal could decide to consider. This means we have no power to consider the alleged fault in the assessment process and cannot do so.

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Final decision

17. We will not investigate Mrs X’s complaint. Part of the complaint is late and there are no good reasons to investigate this aspect of it now. We cannot investigate the remaining aspects of the complaint because Mrs X has used her right to appeal to the Tribunal, and we cannot achieve the outcomes she is seeking.

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Investigator's decision on behalf of the Ombudsman