Summary: We will not investigate this complaint about the Council’s handling of Mrs X’s complaint about the alleged actions of a Council officer in misrepresenting the findings of an educational psychologist when preparing an Education Health and Care Plan for her child. Mrs X has now exercised her right of appeal to the Special Educational Needs and Disability Tribunal against the content of the Plan the Council issued. The matter of the alleged actions is closely linked to the content of the Plan, and it is therefore likely that an investigation by us would overlap with the work of the Tribunal. As we are not investigating the substantive matters of the complaint, it would not be productive to investigate the Council’s complaint handling.

The complaint

1. Mrs X says a Council officer misrepresented the findings of an educational psychologist (EP) assessing her child to remove matters likely to demonstrate the extent of the child’s special educational needs (SEN). She says she only discovered this when work was redone.
2. Mrs X says the Council then allowed the officer to respond to Mrs X’s initial complaint even though it was about her actions. She says the Council also wrongly refused to take her complaint any further.

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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. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (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…”.
7. The courts have said we can decide not to investigate a complaint about any action by an organisation concerning a matter which the law says we cannot investigate. (R (on the application of M) v Commissioner for Local Administration [2006] EHWCC 2847 (Admin))
8. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.

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How I considered this complaint

9. I considered information provided by the complainant.
10. I considered the Ombudsman’s Assessment Code.

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My assessment

11. Mrs X has confirmed to me that the Council issued a delayed final Education Health and Care (EHC) Plan for her child on 24 February 2026, that she has since used her right of appeal to the Tribunal against the contents of Section B and F, and is waiting for a hearing. These sections concern the nature of her child’s SEN and the provision required to meet them. That means we cannot investigate any matter concerning how the Council arrived at its views about her child’s SEN or the provision needed to meet them.
12. The matters complained of are closely linked to the Council’s decisions in respect of the child’s SEN. Mrs X takes the view that the Council has consistently sought to minimise her child’s SEN. It is more likely than not, on the balance of probabilities, that the matter of the alleged misrepresentation of the EP’s findings will be raised during the Tribunal process. The same holds true of the alleged way the Council dealt with the complaint about it. Therefore, it is likely any investigation by us of the alleged matter and the Council’s handling of a complaint about it would overlap with the Tribunal’s work.

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Final decision

13. We will not investigate Mrs X’s complaint because doing so would be likely to overlap with the work of the Tribunal now Mrs X has exercised her right to appeal against the content of the EHC Plan issued by the Council.

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Investigator's decision on behalf of the Ombudsman