Summary: We cannot investigate this complaint about the Council naming a mainstream setting in Miss X’s child’s Education, Health and Care Plan. This is because Miss X 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, and other parts of her complaint are late.

The complaint

1. Miss X complains about the Council’s delay in agreeing a specialist school for her child.
2. Miss X also complains about poor assessment and poor communication from the Council during the Education, Health and Care needs assessment process.

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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. 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.
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…”.
7. 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

8. I considered information provided by Miss X and the Council.
9. I considered the Ombudsman’s Assessment Code.

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My assessment

10. The Education, Health and Care Plan (EHC Plan) for Miss X’s child was finalised in October 2023 and a mainstream setting was named in Section I.
11. I will not investigate the complaint about delay, poor communication and poor assessment as it is late and it would have been reasonable for Miss X to have brought her complaint sooner. These matters relate to pre-October 2023. Miss X complained to the Council in January 2024 and brought her complaint to us in November 2025, over two years after the EHC Plan was finalised.
12. I cannot investigate Miss X’s complaint about the Council naming a mainstream school in her child’s EHC Plan. This is because she has used her right of appeal against this decision to the SEND 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.

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Final decision

13. We will not investigate Miss X’s complaint because she has already used her right to appeal, and the other part of the complaint is late without good reason.

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Investigator's decision on behalf of the Ombudsman