Summary: We will not investigate this complaint about the education, health and care plan process and the suitability of a placement. Miss X had a right to appeal to the Tribunal, and it would have been reasonable to expect her to have used this right.

The complaint

1. Miss X complains the Council has failed to:
• Follow the Tribunal’s decision;
• Follow advice from a Clinical Psychologist;
• Name a suitable placement in the Education, Health and Care (EHC) Plan for her child (Y);
• Provide Y with a suitable, full-time education;
• Communicate with her effectively; and
• Review the quality of the provision.
2. Miss X says the failings identified above have resulted in Y not receiving a suitable education and avoidable distress to the family.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
5. 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:

• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint, or
• it would be reasonable for the person to ask for a council review or appeal; or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

6. 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)
7. 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.
8. 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)
9. 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

10. I considered information provided by Miss X and the Council.
11. I considered the Ombudsman’s Assessment Code.

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My assessment

The Council’s actions following the Tribunal’s decision

12. The Council refused a request to assess Y’s Education, Health and Care (EHC) needs and Miss X exercised her right to appeal this decision to the Tribunal. The Tribunal issued a decision with directions and Miss X complains the Council has not followed them.
13. Miss X’s complaint to the Council dated January 2025 is about the Council’s decision to refuse an EHC Needs Assessment. Miss X complained to the Council before the Tribunal issued its decision following the appeal. I have not seen any evidence of Miss X’s complaint following the Tribunal decision about it not following the directions within the decision. Therefore, I am not satisfied the Council has had the opportunity to investigate and respond to these specific concerns.
14. We cannot investigate complaints where the Council has not had an opportunity to respond. If Miss X’s concerns remain, she can use the Council’s complaints procedure and if she remains unhappy with the outcome, she can bring her complaint to the Ombudsman. Therefore, at this time, we will not investigate this aspect of Miss X’s complaint.

Y’s EHC Plan

15. The Council issued a final EHC Plan for Y on 25 June 2025. Miss X has several complaints about the suitability of the placement named in Section I of Y’s EHC Plan, the content of the final plan and the provision he is receiving. Miss X has sent further information supporting her complaints regarding the unsuitability of the placement and the impact this is having on Y.
16. Parents who are unhappy with the contents of EHC Plan have a right to appeal to the Tribunal. It is the mechanism set up by Parliament for parents to challenge such decisions. We expect parents to use their right of appeal unless it is unreasonable for them to do so.
17. In this case, it was reasonable for Miss X to challenge the school named by appealing to the Tribunal. This is because the Tribunal can decide if an EHC Plan should be amended and a different school named. That is not something we can do.
18. The fact that it would have been reasonable for Miss X to appeal means that the content of the EHC Plan, and matters which are connected to the content, do not fall to be investigated by the Ombudsman. This is because 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. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right. I cannot investigate the education provision in place for Y following the Council’s decision to name the school as it is not separable from that right of appeal.

Poor communication

19. Miss X complains the Council has ignored her emails and communication requests. I acknowledge the frustration this must have caused but the injustice is not significant enough to warrant an investigation. We will not investigate this aspect of Miss X’s complaint.

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Final decision

20. We will not investigate Miss X’s complaint because it was reasonable for her to appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman