Summary: We cannot investigate this complaint about the Council’s failure to provide appropriate education or special educational provison to Mr X’s sister, Y. This is because Mr X used his right to appeal to the First-tier Tribunal (Special Educational Needs and Disability), and the matters which he complains of are the subject of the appeal.

The complaint

1. Mr X complains the Council failed to provide education and specialist provision to his sister Y, when she stopped attending school at the end of 2024.

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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. (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. 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…”.
6. 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

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

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My assessment

9. Y started a new school named in her Education, Health and Care Plan (EHC Plan) in September 2024. The placement ended in February 2025 and Mr X made a complaint in September.
10. Mr X was unhappy with the complaint response, but the Council declined to investigate at stage 2 as his complaint did not meet its criteria for a stage 2 review.
11. The Council could not investigate these matters as part of Mr X’s complaint, as they were being appealed in the Send Tribunal. Therefore I cannot find fault with its complaint response.
12. The law prevents the Ombudsman from investigating Mr X’s complaint. This is because Mr X has used his right to 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.
13. This means that if a young person is not attending education, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement with the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
14. 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 appeal process ends.
15. Mr X would like the Ombudsman to monitor the Council‘s compliance with the Tribunal Order from October 2025, but this would be a new complaint and Mr X will have to go through the Council’s complaint procedure before we could investigate.

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Final decision

16. We will not investigate Mr X’s complaint because he used his right of appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman