Summary: We cannot investigate this complaint about how the Council dealt with Ms X’s child’s education and special educational needs provision. This is because most of the complaint is made late and the complainant used her right to appeal to the Tribunal.

The complaint

1. Miss X complains about how the Council dealt with her child, Y’s, education since 2015. Miss X has brought her complaint to the Ombudsman because she is unhappy with the Council’s response to her complaint and says it has not taken into account that:
• Y’s needs were not fully addressed by her primary school;
• Early interventions failed;
• Y’s mental health suffered from the pressures of attending a school that is unable to meet her needs;
• The Council owed the family a duty of care.

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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 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:

• there is not enough evidence of fault to justify investigating, or
• any injustice is not significant enough to justify our involvement, or
• 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))

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. 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. 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

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

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My assessment

10. Miss X complains of events concerning Y’s education since 2015. The Council maintains an Education, Health and Care (EHC) Plan for Y. In June 2024 the Council issued a final EHC Plan naming a mainstream school. Miss X says Y could not cope in a mainstream school and she used her right to appeal to the Tribunal. Miss X appealed Sections B, F and I of the Plan. Tribunal proceedings concluded in May 2025. The Council investigated Miss X’s complaint and offered £800 to remedy the injustice caused. Miss X is unhappy with the outcome of her complaint.
11. We cannot investigate most of Miss X’s complaints because they are late and she used her right to appeal to the Tribunal. Whilst I acknowledge that Miss X faced challenges in her personal life at the time, I do not consider that this prevented her from raising the matter with the Ombudsman until now.
12. The remainder of Miss X’s complaints, from May 2025 onwards, we will not investigate because there is not enough evidence of fault to justify our involvement and we could not achieve any more than the Council has offered.

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Final decision

13. We cannot investigate Miss X’s complaint because it is made late and she has used her right to appeal to the Tribunal. The remainder of Miss X’s complaint does not justify our involvement.

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Investigator's decision on behalf of the Ombudsman