Summary: We cannot investigate Mr X’s complaint about the Council’s consultation and assessment before issuing an Education Health and Care Plan as Mr X appealed to the Tribunal. We also cannot investigate the education provision in the meantime as it is not separable from the disagreement about what is a suitable setting.

The complaint

1. Mr X says the Council failed to properly assess his child, Y’s, needs, and named an unsuitable school in an Education Health and Care Plan (EHC Plan). He says the Council failed to provide Y with a suitable education. He says the Council used inaccurate information in its consultation and assessment.

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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).

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How I considered this complaint

3. I considered information provided by Mr X and the Council’s replies to him.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. The Council issued an EHC Plan in April 2025 naming School Z. Mr X appealed to the Tribunal. He says School Z cannot meet Y’s needs. He says School Z confirmed this. Mr X says the Council is failing to provide a suitable education to Y. He asked the Council for ‘alternative provision’ under s19 Education Act 1996.
6. As Mr X appealed to the Tribunal we have no power to investigate why the Council named School Z in the EHC Plan. This includes that we cannot investigate the consultation process or the assessment.
7. The courts have established that if someone has appealed to the Tribunal 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)
8. This means we cannot investigate a lack of special educational provision, or alternative educational provision, when:
• a child is not attending school, and
• we decide the reason for non-attendance is linked to, or is a consequence of, a parent’s disagreement about the special educational provision or the educational placement in the EHC Plan.
9. This clearly applies to this case.
10. The period we cannot investigate starts from the date the Council gave the appealable decision to the parents, in this case April 2025. The period we cannot investigate ends when the Tribunal ends.

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Final decision

11. We cannot investigate Mr X’s complaint because he appealed to the Tribunal.

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Investigator's decision on behalf of the Ombudsman