Summary: We will not investigate Ms X’s complaint about the Council’s failure to deliver special educational provision. Part of the complaint is late and there are no good reasons for us to exercise discretion to consider it now. We cannot investigate the rest of the complaint because Ms X used her right of appeal to the Tribunal and therefore it is outside our jurisdiction.

The complaint

1. Ms X complained the Council failed to deliver special educational provision which is set out in her child’s (Y) Education Health and Care (EHC) Plan.
2. Miss X said this caused distress and negatively impacted on Y’s education.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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)
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.

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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. Ms X complained the Council did not ensure Y received delivery of 1:1 provision in school. This provision is set out in section F of Y’s EHC Plan. Ms X said the issue began in early 2023.
9. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable.
10. Ms X complained to the Ombudsman in October 2025 about these matters from early 2023 onwards.
11. As outlined in paragraph three, we cannot investigate late complaints without good reasons to do so. I have seen no good reasons Ms X could not have complained to the Ombudsman sooner. Therefore, I will not exercise discretion to consider matters more than 12 months before her complaint to the Ombudsman.
12. In June 2024, Ms X appealed to the Tribunal about the school named in section I of Y’s EHC Plan. The Council conceded in these proceedings in September 2025 and agreed to name a different school in the EHC Plan.
13. 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)
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 Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
15. The lack of special educational provision complained about is closely linked to Ms X’s appeal to the Tribunal. Therefore, we cannot investigate the rest of Ms X’s complaint.

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Final decision

16. We will not investigate Ms X’s complaint because it is late and there are no good reasons for us to exercise discretion to consider it now. We cannot investigate the rest of it because it is outside of our jurisdiction as Ms X appealed to the Tribunal.

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Investigator's decision on behalf of the Ombudsman