Summary: We cannot investigate this complaint about how the Council assessed her child for an Education, Health and Care Plan. The complainant has used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) and the Courts have decided that the Ombudsman cannot intervene where the right to appeal has been used.

The complaint

1. This complainant, Miss X, complains the Council refused to carry out a sensory occupational therapy assessment as part of the Education, Health and Care Plan process.

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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. 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

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

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My assessment

8. Miss X’s complaint centres around her child not receiving a specialist sensory assessment. Miss X says this has resulted in her child’s special educational needs not being met.
9. The special educational provision needed by a child or young person is specified in Section F of the Education, Health and Care (EHC) Plan. Miss X made an appeal to the Tribunal in relation to the content of her child’s EHC Plan.
10. A consent order from the Tribunal was issued in April 2025. 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. It is Mrs X’s contention that the failure to carry out a specialist sensory assessment resulted in a flawed EHC plan. This matter relates to the content of the EHC plan, which was a matter for the Tribunal. As such, the Ombudsman cannot consider it.
12. As a result of the consent order, Miss X’s child has been given a place in the parent’s preferred setting and a subsequent annual review has resulted in a decision to maintain the EHC Plan. This gives Miss X a further appealable decision should she remain dissatisfied with her child’s special educational needs provision.

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Final decision

We cannot investigate Miss X’s complaint because she has used her right to appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman