Summary: We cannot investigate this complaint about the Council’s failure to ensure a suitable education was secured because the Complainant has used her right to appeal to the First-Tier Tribunal (Special Educational Needs and Disability). The law prevents us from investigating this complaint because the matters complained of are linked to the appeal.

The complaint

1. Miss X complains the Council named a school in her daughter’s Education, Health and Care (EHC) Plan that she cannot attend and it failed to provide her daughter with the provision outlined in Section F of her EHC Plan.

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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. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
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. 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)
7. This means that if a child is not attending their named school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent’s disagreement about the educational placement in the EHC Plan, we cannot investigate a lack of alternative educational provision.
8. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 

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How I considered this complaint

9. I considered information provided by the complainant and the Council.
10. I considered the Ombudsman’s Assessment Code.

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My assessment

11. The Council finalised an EHC Plan for Miss X’s daughter, Z, in September 2025 and it named School B as the placement in Section I of the Plan. From 1 September 2025, Z was unable to attend School B. Miss X complains the Council failed to secure a suitable education and the provision outlined in Z’s EHC Plan and it named a school it knew was unable to meet her needs. Miss X used her appeal rights to the Tribunal and she appealed Sections B (Z’s special educational needs), F (Z’s educational provision) and I (the named placement) of the EHC Plan.
12. We cannot investigate this complaint about the school named in Z’s EHC Plan because Miss X has appealed to the Tribunal about this matter.
13. We cannot investigate any matters linked to Miss X’s appeal.
14. We also cannot investigate the provision arranged for Z because the non-attendance at the named school is linked to or is a consequence of Miss X’s disagreement with the named school.
15. Miss X contacted us again in May 2026 to advise that after a Panel meeting in February 2026, the Council changed Z’s plan and named Educational Other Than At School (EOTAS) but it failed to secure the provision in Section F of the Plan. We consider this a new matter because it relates a new amended Plan.
16. If Miss X is unhappy with matters relating to the new amended EHC Plan, she can issue a fresh complaint to the Council and once she has exhausted the Council’s complaints process, if she remains unhappy, she can bring her complaint to the Ombudsman. We cannot investigate a complaint the Council has not had an opportunity to investigate and respond to.

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Final decision

17. We cannot investigate Miss X’s complaint because she has used her right to appeal to the Tribunal. We cannot consider Miss X’s new complaint because the Council has not had an opportunity to consider it using its complaints process.

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Investigator's decision on behalf of the Ombudsman