Summary: We cannot investigate this complaint about the Council’s handling of a child’s Education, Health and Care plan. This is because the complainant has 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. We will not investigate part of the complaint because it is late and there are no good reasons to investigate it now.

The complaint

1. Miss X complains about the Council’s handling of her child’s Education, Health and Care (EHC) plan. She says her child missed almost two terms of education which caused her and her child anxiety and stress.

Back to top

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 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. 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.
5. 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…”.
6. 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)

Back to top

How I considered this complaint

7. I considered information provided by the complainant.
8. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

9. Miss X says the Council did not provide her child with a suitable school place. She says the Council did not provide her child with alternative provision which resulted in her child missing education.
10. The Council issued the final EHC plan in February 2024. Miss X was not satisfied as it was not her preferred school and says the named school would not meet her child’s special educational needs. Miss X appealed to the Tribunal.
11. The matters Miss X raises relate to or are closely related to the content of the EHC plan. Mrs X has used her right of appeal to the 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.
12. Miss X says the school placement was unsuitable and her child did not attend. The Council says a school place was always available to the child and as such it had no obligation to provide alternative provision. The matter turns on whether the Council deems the school placement suitable and can meet the child’s needs. That is not a matter on which the Ombudsman can express a view. It is a matter for consideration at Tribunal.
13. Part of the complaint refers to events more than 12 months prior to Miss X complaining to us. In this case, matters occurring before January 2025. The complaint is late and there are no good reasons why Miss X could not have come to us sooner. We will not investigate these matters now.

Back to top

Final decision

14. We cannot investigate Miss X’s complaint because she has used her right to appeal to the Tribunal. We will not investigate part of the complaint because it is late and there are no good reasons to investigate it now.

Back to top

Investigator's decision on behalf of the Ombudsman