Summary: We cannot investigate this complaint about the Council’s failure to commission key reports when assessing a child’s education, health and care needs because it is not separable from matters considered by the Tribunal.

The complaint

1. Mrs X complains the Council failed to commission key reports when assessing her child’s education, health and care (EHC) needs.
2. Mrs X says the Council has admitted the failings but provided inadequate redress for the injustice caused.

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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 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)
5. 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.
6. 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

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

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My assessment

9. Mrs X appealed the Council’s decision to refuse to assess her child’s EHC needs. The Council conceded and agreed to assess the child’s needs and obtain assessments from a Speech and Language Therapist (SaLT) and an Occupational Therapist (OT). In June 2025, the Council issued a decision not to issue an EHC Plan without commissioning assessments from a SaLT and OT.
10. The Council upheld Mrs X’s complaint, apologised, offered a symbolic payment and began the process of commissioning the relevant assessments. Mrs X complains the Council delayed in obtaining the assessments and the SaLT assessment is still outstanding.
11. While I understand Mrs X’s frustrations, we cannot start an investigation into her complaint because we cannot investigate issues, events and matters involved or linked to a Tribunal appeal because the law does not allow us to.
12. Although the law says we cannot consider the matter for the reason in paragraph 6, no such restriction applies to the Council. The Council has accepted it made its decision without necessary information and offered a remedy with regard to our guidance. The Council can remedy any ongoing injustice and Mrs X can ask it to do so. But the Ombudsman could not consider a complaint about it.

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Final decision

13. We cannot investigate Mrs X’s complaint because it is linked to matters being considered by the Tribunal.

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Investigator's decision on behalf of the Ombudsman