Summary: We cannot investigate this complaint about special educational provision for the complainant’s child. This is because the complainant has used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability), and the matters about which she complains are not separable from those which the Tribunal can consider.

The complaint

1. The complainant, Mrs X, complains that the Council has failed to communicate appropriately regarding special educational provision for her child.

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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…”.

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How I considered this complaint

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

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My assessment

8. Mrs X’s son has special educational needs and an Education Health and Care (EHC) plan. Mrs X says the EHC plan was initially issued without a named school. She complains that the Council subsequently failed to communicate appropriately with her in the matter of identifying a placement.
9. The Ombudsman cannot investigate this complaint. The evidence Mrs X has provided shows that her child’s EHC plan was issued in June 2025 and that she subsequently used her right to appeal to the Tribunal. The matters she has raised in her complaint relate to communication during mediation and before she lodged her appeal. The fact that she appealed means that, by law, the Ombudsman cannot consider matters relating to the content of the EHC plan from the date on which it was issued. This restriction applies to both the named school and communication about it. There is no discretion available to us.

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Final decision

10. We cannot investigate Mrs X’s complaint because she has used her right to appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman