Summary: We will not investigate this complaint that the Council failed to properly identify and meet the complainant’s son’s special educational needs and has failed to respond reasonably to her subsequent complaint. The complaint concerns matters which the law says we cannot consider, or which are closely related to matters about which the complainant could have used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability).

The complaint

1. The complainant, Mrs X, complains that the Council failed to properly identify and meet her son’s special educational needs and has failed to respond reasonably to her subsequent complaint.

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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 most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), 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…”.

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How I considered this complaint

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

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My assessment

9. Mrs X’s son has special educational needs and an Education Health and Care (EHC) plan which was issued in June 2025. Mrs X complains about what she regards as flaws in the process of assessing her son’s needs and a failure to secure the provisions set out in the EHC plan.
10. Mrs X complains that, in the period before the EHC plan was issued, the Council was at fault in declining to provide appropriate support to her son’s school. She argues that this denied him access to appropriate education and led to a failure to safeguard him.
11. She further complains that, in the course of the assessment of her son’s needs, the Council relied inappropriately on the content of an occupational therapy report. She says the report was completed without observation of her son.
12. We will not investigate matters which took place before the EHC plan was issued. The delivery of education was, at that stage, the responsibility of the school and the law prevents the Ombudsman from investigating it. Whether the appropriate resources were provided is a matter between the school and the Council and is not for the Ombudsman.
13. We cannot express a view on whether the Council was at fault in choosing to rely on the occupational therapy report. If this report was material to an outcome with which Mrs X disagreed, it would have been reasonable for her to use her right to appeal to the Tribunal. That being the case, we will not investigate the matter.
14. In her complaint to the Ombudsman, Mrs X asserts that the Council has failed in its duty under Section 42 of Children and Families Act 2014. This duty was not engaged until the EHC plan was issued, and did not form part of the complaint to the Council. That being the case, we will not consider it. If Mrs X believes provision set out in the EHC plan has not been secures, she should complain to the Council in the first instance.
15. Mrs X says she made a subject access request to the Council and is unhappy with its response. This is a matter she may bring to the attention of the Information Commissioner’s Office, which is the appropriate body to consider such matters. There is no role for the Ombudsman.
16. Where a substantive matter does not fall to be investigated, we will not normally investigate alleged fault in how a council has responded to a complaint about it. It is not a good use of our resources to do so. That is the case here.

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Final decision

17. We will not investigate Mrs X’s complaint because it concerns matters which the law says we cannot consider, or which are closely related to matters about which she could have used her right to appeal.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman