Summary: We cannot investigate this complaint that the Council has failed to take appropriate action to address the complainant’s son’s needs and to make appropriate educational provision for him son. This is because the complainant has used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability), and the law prevents us from intervening.

The complaint

1. The complainant, Miss X, complains that the Council failed to take appropriate action to address her son’s needs and has failed to make an appropriate school place available for him from September 2025.

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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 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)
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. 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

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

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My assessment

9. Miss X says her son has complex needs and an Education Health and Care (EHC) plan. She says the Council failed to act on 24 referrals from professionals and other agencies regarding his unmet needs and that this failure was material to his exclusion from school.
10. We will not investigate whether failure to respond to the referrals was material to the exclusion. It is unlikely that we would be able to establish a causal link between the Council’s actions and the outcome, as we can take no view on the reasons for the school’s decision to exclude. Miss X had the opportunity to appeal against the exclusion, and it would have been reasonable for her to raise the matter as part of an appeal.
11. Miss X says her son requires a place at a specialist school. His EHC plan names an appropriate school, but only for admission in September 2026. Miss X wants her son to be placed there immediately and has appealed to the Tribunal against the decision not to do so. She complains that the Council has provided false information to the Tribunal in opposing her appeal.
12. The Ombudsman cannot investigate Miss X’s complaint. She says the outcome she is seeking is that her son is placed at the school immediately. This is not something on which the Ombudsman can express a view. The appropriate forum in which to discuss and determine the matter is the Tribunal. The fact that Miss X has used her right to appeal to the Tribunal places the matter outside the Ombudsman’s jurisdiction by law, and we cannot intervene.
13. The courts have decided that, as well as the decision which is the subject of the appeal, the Ombudsman cannot investigate any matter which the Tribunal can consider. This means we cannot investigate the actions of the Council’s officers or the evidence they supply in the course of the appeal process. There is no discretion available to us.

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Final decision

14. We cannot investigate Miss X’s complaint because she has used her right to appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman