Summary: We cannot investigate this complaint about the Council’s handling of an Education Health and Care plan. This is because the complainant has used his right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) and the courts have decided the Ombudsman cannot intervene where the right to appeal has been used.

The complaint

1. The complainant, Mr X, complains about the Council’s handling of his child’s Education Health and Care plan. He says his child has not been offered a suitable school place and he has appealed the decision to the tribunal.

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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.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Mr X was unhappy with the actions of the Council in assessing his son’s needs, and the school named on his child’s Education Health and Care (EHC) plan. He says the Council failed to consider all evidence when deciding which school to name. Mr X says the school named in Section I of the EHC plan cannot meet his child’s needs and has not attended school since September 2025.
9. Mr X used his right of appeal to the Tribunal and says the Council ignored his request to change the EHC plan prior to the Tribunal Hearing. The Tribunal upheld the Council’s decision about the named school and Mr X’s appeal of the Tribunal’s ruling was unsuccessful.
10. The matters Mr X raises relate to the content of the EHC Plan and the Council’s actions prior to the Tribunal hearing. Mr X has used his right of appeal to the Tribunal. 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. As such, the Ombudsman cannot consider the complaint.
11. Mr X further complains that the Council declined his subsequent request for a reassessment. This is itself a decision which carries the right of appeal to the Tribunal, and it would be reasonable for Mr X to do so.

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Final decision

12. We cannot investigate Mr X’s complaint because he has used his right of appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman