Summary: We will not investigate Miss X’s complaint about the Council’s assessment and decision-making processes following a SEND Tribunal hearing. If she is unhappy with the school named in the Education, Health and Care Plan, it is reasonable for her to submit a further appeal to the Tribunal. If she considers the Council has not complied with the Tribunal’s direction, she can refer this back to the Tribunal for consideration.

The complaint

1. Miss X complains the Council named a school in her child, Y’s Education, Health and Care (EHC) Plan before consulting with the school to determine if it could meet his needs. She says this was unlawful and has caused distress and a loss of trust. She wants the Council to apologise and improve its practices.

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The Ombudsman’s role and powers

2. 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)
3. 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.
4. 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. 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. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
5. The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699 (‘Tribunal Procedure Rules’) give the Tribunal the power to do the following: 

• Regulate its own procedure. The Tribunal Procedure Rules give the Tribunal extensive case management powers. 
• Take ‘such action as it considers just’ if a party fails to comply with a requirement in the Tribunal Procedure Rules, a Practice Direction or a direction by the Tribunal. 

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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. In 2025, the Tribunal ordered the Council to name a special school in Section I of Y’s EHC Plan. The Council finalised Y’s plan naming a special school, shortly after the Tribunal Order.
9. Ms X complained the Council finalised the plan naming the school before it had consulted with the school to determine if it could meet Y’s needs. She said this was unlawful and put pressure on the school into offering him a place. She also complained the Council appears to have pre-determined his next placement, which is inappropriate and has caused distress.
10. We will not investigate this complaint. The Council amended Y’s plan and named a special school, which appears to be in line with the Tribunal directions. If Miss X was dissatisfied with the school named in the amended EHC Plan, she had a further right of appeal to the Tribunal, which it was reasonable for her to use.
11. I accept Miss X is dissatisfied with the Council’s assessment and decision making regarding the named school, but we cannot investigate this. This is because any dissatisfaction with its decision making is connected to the decision to name the school, which can be raised as part of any appeal.
12. If Miss X considers the Council has not complied with the Tribunal Order, she can refer this back to the Tribunal for consideration. The Tribunal has wide ranging powers to regulate its own procedures. It can take action as it considers necessary, if a party fails to comply with a Tribunal direction.
13. We only consider complaints about events that have happened, so we cannot consider a complaint about any potential future placement decisions regarding Y’s education.

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Final decision

14. We will not investigate Miss X’s complaint. If she is dissatisfied with the school named in Y’s Education, Health and Care Plan, it is reasonable for her to appeal to the Tribunal. If she considers the Council has not complied with the Tribunal’s direction, she can refer this back to the Tribunal for its consideration.

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Investigator's decision on behalf of the Ombudsman