Summary: We will not investigate this complaint that the Council has been at fault in the process of assessing the complainant’s child’s education, health and care needs, and in failing to secure provision to meet those needs. The complaint concerns matters about which the complainant used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) Tribunal, could have used her right to appeal, or are not separable from such matters.

The complaint

1. The complainant, Ms X, complains that the Council has been at fault in delaying her child’s Education Health and Care Needs Assessment (EHCNA), in failing to secure the provision set out in his Education Health and Care (EHC) plan, and in failing to make appropriate redress under its complaint procedure.

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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. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (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. 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…”.
6. 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)
7. 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

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

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My assessment

10. Ms X’s son has an EHC plan. The correspondence she has provided shows that the Council issued the EHC plan in January 2025, and that the statutory timescale for doing so was exceeded. Ms X complains that, in addition to the delay, the Council has failed to secure the provision set out in the EHC plan.
11. Ms X complained to the Council that the EHC plan did not identify and address her sons needs and that, as a result, he was unable to attend school from February 2025. She asked the Council to fund alternative provision for her son and to reassess his needs. It declined to do so. Ms X contends that her son has therefore missed out on provision to which he was entitled. She says subsequently the Council unreasonably refused her request for an Education Otherwise Than at School package. In June 2025, she used her right to appeal to the Tribunal against the Council’s decision not to reassess.
12. The Ombudsman will not investigate Ms X’s complaint. Where there is disagreement about the content of an EHC plan the appropriate forum to consider and decide the matter is the Tribunal. Where appeal rights exist, the Ombudsman normally expects them to be used. It would have been reasonable for Ms X to use her right to appeal against the content of the EHC plan when it was issued in January 2025.
13. Ms X contends that the fact that the EHC plan did not meet her son’s needs was material to the fact that he could not attend after February 2025. That being the case, the matter does not fall to be investigated.
14. 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. 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’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.
15. The same restrictions apply where someone had a right of appeal to the Tribunal, and it was reasonable for them to have used that right. That is the case here. That means we cannot consider the period from January 2025 when the EHC plan was issued. The fact that Ms X subsequently appealed against the decision to reassess also places this decision outside our jurisdiction, and we cannot investigate matters which take place before the appeal process ends. There is no discretion available to us.
16. The Ombudsman can consider whether an EHCNA was unreasonably delayed. In this case, the parties agree that the process took two months longer than it should have. The Council has offered a symbolic payment of £200 in recognition of this fault on its part. This is in line with what we would be likely to recommend in the circumstances of the case. Our intervention would not lead to a different outcome and is not therefore warranted.

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Final decision

17. We cannot investigate Ms X’s complaint because it concerns matters about which she used her right to appeal to the Tribunal, could have used her right to appeal, or are not separable from such matters.

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Investigator's decision on behalf of the Ombudsman