Summary: Mrs X complained about delay in the Education, Health and Care plan process for her son. We have ended our investigation as Mrs X has used her right of appeal to the Tribunal.

The complaint

1. Mrs X complains about delay in the Education, Health and Care plan process for her son. Mrs X says this means her son has missed educational support and this has caused him and the family distress. Mrs X also says she had to fund private assessments and the final plan does not adequately meet her son’s needs as it relies on out-of-date assessments and information.

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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. 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). 
6. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

7. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
8. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Background and legislation

9. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the Tribunal or the council can do this. 
10. There is a right of appeal to the Tribunal against a council’s:

• decision not to carry out an EHC needs assessment or reassessment;
• decision that it is not necessary to issue an EHC Plan following an assessment;
• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;
• amendment to these elements of an EHC Plan;
• decision not to amend an EHC Plan following a review or reassessment; and
• decision to cease to maintain an EHC Plan.

What happened

11. The following is a brief summary of key events. It does not include everything that happened.
12. Mrs X sought an EHC needs assessment (EHCNA) for her son in September 2023. The Council refused this request in October 2023. Mrs X appealed this decision.
13. The Tribunal allowed the appeal and issued an Order on 15 April 2024 for the Council to secure an EHCNA. The Council completed the EHCNA and decided in June 2024 not to issue an EHC Plan. Mrs X appealed this decision.
14. During the ongoing Tribunal proceedings, the Council considered new evidence and decided to commission an educational psychologist report (EP) and subsequently to issue an EHC Plan. Mrs X has confirmed she paid for a private Occupational Therapist report and an attention deficit hyperactivity disorder (ADHD) assessment.
15. The Council issued a draft EHC Plan on 3 September 2025 and a final EHC Plan on 3 October 2025.
16. Mrs X has confirmed the Council did not notify the Tribunal it had conceded the appeal until just before the hearing date in October 2025.
17. Mrs X has appealed the content of the EHC Plan issued on 3 October 2025.

My consideration

18. 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. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
19. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the subsequent period while any changes to the EHC Plan are finalised, so long as a council follows the statutory timescales to make those amendments.
20. We also cannot investigate a 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)  
21. Some parents will incur significant legal and expert fees during the appeal process. We cannot investigate this as the Tribunal has powers to consider and/or award costs as part of the appeal. (The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699, Rule 10) 
22. The restrictions set out above mean that the issues Mrs X has raised about the Council’s decisions not to complete an EHCNA and not to issue an EHC Plan and content of the Final EHC Plan are not matters the Ombudsman can investigate as Mrs X has used her right of appeal. We also cannot investigate Mrs X’s concerns about the Council’s conduct and delays during the appeal process itself.
23. In addition, we cannot look at anything which happened before the appeal right started which could be considered by the Tribunal. This includes, the assessment process, such as which reports and documents the Council obtained. This is for two reasons. Firstly, the injustice caused by the poor, or non-existent reports, is that the EHC Plan does not meet the child’s needs which is the subject of the appeal. Secondly, because the Tribunal has wide powers to order reports be completed.
24. Finally, we cannot consider the costs of the optional reports Mrs X obtained. This is because once an appeal has started the Tribunal can order any reports it considers necessary and has powers to make costs orders. The potential injustice from not having a report or relying on out-of-date assessments is a poor or inadequate EHC Plan. This has a right of appeal which Mrs X has used.

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Decision

25. I have ended my investigation into Mrs X’s complaint because the issues raised are not ones the Ombudsman can deal with.

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Investigator's decision on behalf of the Ombudsman