Summary: Mrs X complained about the delivery of special educational provision by the Council. She says it delayed completing her son’s phase transfer review. Mrs X says that as this was late, she could not appeal until September after the school term had begun. Mrs X says that her child has had no education since September 2025. We will not investigate this complaint. Mrs X has appealed to a tribunal which places the complaint outside our jurisdiction.

The complaint

1. Mrs X complains about the delay from the Council in completing her son’s phase transfer review. Mrs X says that as this was late, she could not appeal until September 2025 after the school year had begun. She says that her child has been left without education since this point which has caused both her and her child distress.

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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)

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How I considered this complaint

6. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
7. 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

8. Mrs X says the phase transfer review for her child was late. After the Council amended the Education, Health and Care (EHC) Plan, Mrs X told the Council in August 2025 the school named was not appropriate for her child and they could not attend. Mrs X confirms that she complained to the Tribunal solely about the school named on her child’s EHC plan.
9. In April 2026 the Tribunal found the school named was not suitable for Mrs X’s child and named an alternative school.
10. 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)
11. 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.
12. We would not usually look at the period following this while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments. If it did not, this would be the basis for a new complaint at the time.
13. We appreciate Mrs X is unhappy that her child was out of education at the time, and this directly relates to the decision from the Council to name a school which she did not want. However, the decision to name the school is closely linked to Ms X’s appeal to the Tribunal. Therefore, we cannot investigate the rest of Ms X’s complaint and the alleged injustice, because it is not separable from the appeal.

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Decision

14. We will not investigate Mrs X’s complaint because it is outside our jurisdiction as Mrs X appealed to the tribunal.

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Investigator's decision on behalf of the Ombudsman