Summary: We will not investigate this complaint about the Council’s handling of an Education, Health and Care Plan. Part of the complaint is late and there is no good reason for us to consider it now.

The complaint

1. The complainant, Mrs X, complains about the Council’s handling of her child’s Education Health and Care plan and educational provision. She says the Council’s decisions and actions have had a detrimental impact on her child’s education. She says the Council has rejected her complaint due to the passage of time.

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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 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)
5. 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.
6. 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…”.
7. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact 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 or continue an investigation if we decide we could not add to any previous investigation by the organisation. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
8. 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)

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How I considered this complaint

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

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My assessment

11. Mrs X has complained to the Council about matters that happened between 2019 and 2026. The evidence shows Mrs X’s child has attended two schools and an alternative provision setting since being issued his first Education Health and Care plan in 2021.
12. We will not investigate matters which took place before the middle of 2024. This part of the complaint is late and it would have been reasonable to expect Mrs X to complain about these matters to the Ombudsman sooner. There are no good reasons for us to consider these matters now.
13. The child remained on roll at a specialist school and following an annual review in May 2024, the Council agreed to fund alternative provision and transport costs. The Council sent the increased funding to the school. Mrs X said she could no longer transport the child to the alternative provision in July 2024. There was a delay in arranging transport and this resulted in the child not attending the alternative provision between September 2024 and December 2024.
14. Mrs X appealed to the Tribunal in December 2024, and in accordance with the Tribunal’s final order, Mrs X’s child was offered a place at her preferred school from January 2025. In April 2025, an annual review took place and the placement at the school in Section I of the EHC plan remained unchanged, however, the school reported the child’s attendance was inconsistent. An early annual review took place in September 2025 and following a new Educational Psychologist assessment and recommendations, the placement was again unchanged. At the annual review meeting, Mrs X requested Education Other Than At School (EOTAS). The Council advised Mrs X of her right to appeal to the Tribunal.
15. Mrs X complains a coach delivering specialist provision was not being funded correctly. She raised her concerns with the Council as she thought the provision was at risk of not being delivered. The Council says there were ongoing discussions with the coach about funding arrangements but this did not result in a loss of provision.
16. On the matters that relate to the content of the EHC plan issued in 2024, Mrs X used her right of appeal to the Tribunal. 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. As such, the Ombudsman cannot consider this part of the complaint.
17. Mrs X says the child’s current school is unable to meet her child’s needs. The matter turns on whether the Council deems the school placement suitable and is in a position to deliver specialist provision. That is not a matter on which the Ombudsman can express a view. The evidence shows that the Council is satisfied the school place meets the child’s needs. The early annual review resulted in no change to the placement. If Mrs X remains dissatisfied, it is reasonable to expect her to use her right of appeal to the Tribunal.
18. We will not investigate Mrs X’s complaint about the EHC plan issued in February 2026. This is because it is reasonable for Mrs X to use her right of appeal to the Tribunal if she is dissatisfied with her child’s EHC plan. The Council reminded Mrs X of her appeal right during the complaints process.
19. Mrs X complains about the lack of transport to alternative provision resulting in the child not attending has been considered by the Council. Mrs X has been offered a remedy for the missed provision that is broadly in line with what the Ombudsman would recommend. We will not investigate this part of the complaint because we could not add to the previous investigation carried out by the Council.
20. Mrs X also complains about the Council’s handling of her complaints. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue. That is the case here.

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Final decision

21. We will not investigate Mrs X’s complaint. Part of the complaint is late and there are no good reasons to consider it now. Part of the complaint relates to a matter about which Mrs X has used her right of appeal to the Tribunal, or where it would be reasonable to do so. We will not investigate part of Mrs X’s complaint because it would have been reasonable for her to appeal to the Tribunal. Investigation would not add anything significant to the response the Council has already made to the complaint and is not therefore warranted.

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Investigator's decision on behalf of the Ombudsman