Summary: We will not investigate this complaint about the Council’s failure to provide educational provision. This is because part of the complaint is closely related to issues which have been appealed to the tribunal. The Council has upheld the remaining issues and an investigation by the Ombudsman is unlikely to lead to a different outcome.

The complaint

1. Mrs X complained the Council has failed to:
• Provide suitable provision for her son, Mr Y,
• Make Education Otherwise than at School (EOTAS) arrangements, and
• Make personal budget payments.
2. She says this has caused Mr Y to miss a significant amount of education and it has affected his mental health. He has suffered from the stress and anxiety.

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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 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)
5. 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)
6. 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.
7. 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…”.
8. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

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

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My assessment

11. Mr Y had an Education, Health and Care (EHC) Plan issued by the Council in 2023. Mrs X appealed to the tribunal about this plan, this included an appeal of section I. The tribunal finished in late 2024.
12. The tribunal decided the Council should provide Mr Y with EOTAS and a personal budget. Mrs X complains the Council did not provide Mr Y with this provision until late spring 2025. The Council admitted a delay in arranging the personal budget and the EOTAS provision. It offered Mr Y a financial remedy for missed provision.
13. While I appreciate Mrs X’s frustration that Mr Y was without provision this complaint covers the period of 2023 to 2024 and is linked to the issue she has appealed. This means we cannot investigate the complaint of missing provision before late 2024.
14. We will not investigate Mrs X’s complaints about the missed provision following the tribunal proceedings. Our further investigation would not lead to a different outcome for Mrs X. It is unlikely we would award a significantly larger payment than the Council has already offered.

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Final decision

15. We will not investigate Mrs X’s complaint because part of the complaint closely relates to issues Mrs X has appealed and an investigation is unlikely to lead to a different outcome for the remaining issues.

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Investigator's decision on behalf of the Ombudsman