Summary: We will not investigate this complaint about the Council’s handling of an 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 this complaint as there is not enough evidence of significant injustice.

The complaint

1. Mrs X complains about the Council’s handling of her child’s Education, Health and Care (EHC) plan. She says this has caused her and her family distress and her child’s special educational needs have not been met.

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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 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 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 any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

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

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My assessment

9. Mrs X complains the Council has not ensured her child’s special educational needs have been met. She says the Council has not carried out timely reviews of her child’s EHC Plan or the Education Other Than At School (EOTAS) provision. She says the Council did not make changes to the Plan following changes to her child’s needs.
10. The matters Mrs 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.
11. Mrs X also says the Council did not confirm a placement for the new school year in a timely manner. She says this caused uncertainty for her and her child. In August 2025, the Council informed Mrs X her child’s placement would continue in September. I understand this may have created a period of uncertainty between the end of term and August but there was no loss of provision or education. We will not investigate this as there is not enough evidence of significant injustice to warrant an investigation.

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Final decision

12. We cannot investigate Mrs X’s complaint because she has used her right of appeal to the Tribunal. We will not investigate part of the complaint because there is not enough evidence of significant injustice.

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Investigator's decision on behalf of the Ombudsman