Summary: We cannot investigate this complaint about the Council’s refusals to undertake an Educational Health Care Needs Assessment and to issue an Education Health and Care plan for the complainant’s child. This is because the complainant has used his right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) and the courts have decided the Ombudsman cannot intervene where the right to appeal has been used.

The complaint

1. The complainant, Mr X, complains the Council:
• missed opportunities to review its refusal to carry out an Educational Health Care Needs Assessment (ECHNA) for his child and unlawfully delayed agreeing to do so;
• carried out an EHCNA using information that was available when it initially refused to do so;
• relied on outdated information in reaching its decision not to issue an Education, Health and Care (EHC) plan; and
• failed to respond to a request for mediation within required timescales.
2. Mr X says his child’s needs went unassessed and unsupported during a critical period of their education, leading to delayed progression. Mr X paid for alternative educational provision, which caused stress, financial strain and disruption to the family’s routines.

Back to top

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 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. 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…”.

Back to top

How I considered this complaint

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

Back to top

My assessment

9. Mr X asked the Council to undertake an EHCNA for his child in November 2023. The Council’s decision to refuse triggered a right for Mr X to appeal to the Tribunal. Mr X used this right. The Council then completed an EHCNA.
10. The Council refused to issue an EHC plan for Mr X’s child in July 2025. This decision triggered a further right for Mr X to appeal to the Tribunal, which he used.
11. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, or connected to, or could have been part of, the appeal to the Tribunal. This applies to all matters relating to the Council’s refusal to undertake an ECHNA. Including whether the Council’s initial refusal to undertake the ECHNA was wrong, any missed opportunities to reverse that decision before the date of the Tribunal and any delay in ultimately agreeing to undertake it. These matters could have been considered by the first Tribunal.
12. The parts of Mr X’s complaint relating to the Council’s refusal to issue an EHC plan could have been considered by the second Tribunal, or are closely related to such matters. This includes the information relied upon by the Council and any delay in responding to a mediation request. So, the law says we cannot investigate any parts of Mr X’s complaint.

Back to top

Final decision

13. We cannot investigate Mr X’s complaint because he has used his rights of appeal to the Tribunal.

Back to top

Investigator's decision on behalf of the Ombudsman