Summary: We will not investigate Miss X’s complaint about an Education Health and Care Plan assessment. It is reasonable to expect her to have appealed to the Tribunal.

The complaint

1. Miss X says the Council failed to properly assess her child, Y’s, educational needs.

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The Ombudsman’s role and powers

2. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
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. 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…”.
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 Miss X and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Y has an Education Health and Care Plan (EHC Plan). In late 2024, Y’s School held an EHC Plan annual review. They sent a report to the Council. It issued a decision notice in February 2025 with an amended EHC Plan.
9. Miss X says the Council failed to properly assess Y’s needs. In particular, she believes the Council should have carried out an Occupational Therapy (OT) assessment. She says she repeatedly asked for this. She decided to pay privately and got her own in April 2025.
10. Miss X complained to the Council in July 2025. She said it had failed to obtain an OT assessment and had not consulted schools properly. She said it had not included all the necessary documents in a Tribunal bundle, although she has also told us that she has not appealed to a Tribunal.

Analysis

11. We cannot investigate the evidence the Council should have given to a Tribunal.
12. The main effect of an inadequate EHC Plan assessment is that the EHC Plan does not meet the child’s needs. There is a right of appeal of the EHC Plan to the Tribunal. Here in February 2025 the Council’s cover letter with the amended EHC Plan clearly sets out the appeal rights and how to seek advice. It is reasonable to expect Miss X to have appealed. The Tribunal would have had the powers to consider ordering an OT report or ordering the Council pay for Miss X’s report.

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Final decision

13. We will not investigate Miss X’s complaint because it is reasonable to expect her to have appealed to the Tribunal.

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Investigator's decision on behalf of the Ombudsman