Summary: We cannot investigate most of Ms X’s complaints about her child’s Education, Health and Care Plan and the process by which the Council made the EHC Plan because she appealed to a tribunal. We will not investigate the remainder because the tests in our assessment code are not met.

The complaint

1. Ms X complained the Council:
1. gave unlawful reasons why it would not conduct an Education, Health and Care (EHC) needs assessment of her child, Y;
2. acted inappropriately during mediation;
3. delayed providing information to the SEND Tribunal;
4. failed to meet statutory timescales regarding Y’s EHC Plan; and
5. made an EHC Plan which does not reflect Y’s needs.
2. Ms X said the matter caused her frustration, distress, and uncertainty.

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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. 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. 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. We cannot investigate the council’s conduct during an appeal. This includes anything a complainant could have raised with the tribunal at any stage of the appeal, or which the tribunal has considered on its own initiative, or which could have been a part of the tribunal’s deliberations in resolving the appeal (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
7. 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. We do not start an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)

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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

Background

10. Ms X has a child, Y. In September 2024 Ms X asked the Council to conduct an EHC needs assessment of Y. The Council refused to conduct an EHC needs assessment in late September 2024. Ms X and the Council later engaged in mediation. Ms X then appealed the decision to the SEND Tribunal.
11. The SEND Tribunal ordered the Council to conduct an EHC needs assessment of Y. In late May 2025 the Council decided to make an EHC Plan for Y. It sent Ms X a final EHC Plan in mid-July 2025, and an updated/ amended final EHC Plan in late-July 2025.
12. Ms X appealed the content of the final amended EHC Plan to the SEND Tribunal.

Unlawful reasons to refuse conducting an EHC needs assessment

13. Ms X complained a Council officer provided unlawful reasons for refusing to conduct an EHC needs assessment of Y.
14. We cannot investigate this complaint. Ms X appealed the decision not to make an EHC Plan for Y to the SEND Tribunal. The reasons why the Council did not make the EHC Plan were therefore considered by the SEND Tribunal. Although the phone call may not have been specifically raised with the Tribunal, the consequence is too closely linked to the matter appealed and the law says we cannot investigate.

Conduct during mediation

15. Ms X complained about the conduct of staff during mediation. The Council acknowledged Ms X’s views but said its officers did not hold any contempt or distain for Ms X and her views.
16. We will not investigate this complaint. Although Ms X said she believed the Council officers were rude, an investigation by the Ombudsman is unlikely to be able to conclude, even on a balance of probabilities, that this happened. An investigation is unlikely to achieve to a different outcome to the Council’s investigation, and so we will not investigate.

Delay in providing information to the SEND Tribunal

17. Ms X complained the Council failed to comply with the directions of the SEND Tribunal during its consideration of her appeal.
18. We cannot investigate this complaint. The courts have confirmed the Ombudsman has no jurisdiction to investigate the Council’s conduct during an appeal including any delays in providing information to the Tribunal.

Failure to meet statutory timescales when making Y’s EHC Plan

19. Ms X complained the Council delayed obtaining assessments for Y’s EHC Plan. In its complaint response, the Council upheld the complaint and apologised.
20. We will not investigate this complaint. The Council already apologised for the handful of weeks the delay caused in making the final EHC Plan. An investigation is unlikely to achieve any additional outcome.

Y’s EHC Plan does not reflect their needs

21. Ms X complained the final EHC Plan does not reflect Y’s needs. She said the EHC Plan was inaccurate, unlawful and named a school in section I that was unsuitable for Y’s needs.
22. We cannot investigate this complaint. Ms X used her right to appeal the content of the EHC Plan to the SEND Tribunal, and the law says we cannot investigate. The Tribunal will now determine the issues Ms X complains about.

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Final decision

23. We cannot investigate most of Ms X’s complaints because she appealed to a tribunal. We will not investigate the remainder because the tests in our assessment code are not met.

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Investigator's decision on behalf of the Ombudsman