Summary: We cannot investigate Mrs X’s complaint about matters which are not separable from a Tribunal appeal.

The complaint

1. Mrs X complains about the way the Council acted on an Education Health and Care Plan (EHC Plan) case.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I considered information provided by Mrs X and the Council’s reply to her.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mrs X’s child, Y, has an EHC Plan. She says the Council has committed procedural failings and delays in its processing of Y’s case. She says after an emergency review in July 2024, the Council issued a notice it intended to amend the EHC Plan in August 2024. Mrs X appealed this to the Tribunal. That appeal case finished a year later in August 2025.
7. Mrs X is not happy with an Educational Psychologists report and the Council’s reliance on it within its decision making in the events that lead up to the appeal and during it. We cannot look at this. As Mrs X appealed to the Tribunal we cannot investigate issues which cannot be separated from that Tribunal. This includes assessments which feed into the Council’s decision making on what is suitable provision.
8. Mrs X disagreed with the Council leaving a school named in the EHC Plan. We cannot look at this as Mrs X appealed to the Tribunal what is a suitable provision which includes the setting.
9. Mrs X says the family has incurred costs in providing an education to Y. We cannot look at the provision of education to Y during the appeal because what should have been provided is not separable from the Tribunal’s consideration of what is a suitable education for Y.
10. Mrs X says the Council delayed during the appeal in agreeing issues.
11. The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699 (‘Tribunal Procedure Rules’) give the Tribunal the power to do the following: 

• Regulate its own procedure. The Tribunal Procedure Rules give the Tribunal extensive case management powers. 
• Take ‘such action as it considers just’ if a party fails to comply with a requirement in the Tribunal Procedure Rules, a Practice Direction or a direction by the Tribunal. 
• Make an order for costs if it considers a party has acted unreasonably in bringing, defending or conducting proceedings. 
• Require the council’s response to the appeal to include the views of the child or the reasons why the council has not asked for those views. 

12. 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…”.
13. We cannot investigate any Council action during the appeal which is about the matters appealed or its handling of those as the Tribunal has powers to make orders about delays and other such failings.

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Final decision

14. We will not investigate Mrs X’s complaint because the matters she complains of are not separable from a Tribunal appeal.

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Investigator's decision on behalf of the Ombudsman