Summary: We will not investigate this complaint about delays in assessing and meeting the complainant’s child’s education, health and care needs. This is because the complaint is late in part, and the complainant has used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability).

The complaint

1. The complainant, Mrs X, complains that the Council delayed issuing her daughter’s Education Health and Care (EHC) plan and delayed responding to her subsequent appeal.

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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 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)
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…”.

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How I considered this complaint

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

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My assessment

9. Mrs X says she asked the Council for and Education Health and Care Needs Assessment for her daughter in July 2023. She was attending an independent school which Mrs X felt she should continue to attend. Mrs X says the Council did not issue the EHC plan until August 2024, exceeding the statutory timescale by some 37 weeks.
10. The Council declined to name the school Mrs X’s daughter was attending in the EHC plan. Rather, it named a mainstream school, Mrs X used her right to appeal to the Tribunal. She says the Council conceded and agreed to name the school of her choice in September 2025.
11. Mrs X complains that the delays in assessing her daughter’s needs, issuing her EHC plan and responding to her appeal amount to fault. She says they have caused significant detriment and financial loss, including school fees which would not have been incurred if the 20-week deadline for issuing the EHC plan had been met.
12. We will not investigate Mrs X’s complaint about the delay in issuing the EHC plan because it is late. Late complaints are when someone takes more than 12 months to complain to us. The EHC plan was issued in August 2024 and Mrs X did not come to us until January 2026. There are no good reasons for us to investigate this aspect of the complaint, and we will not do so.
13. The law prevents us from considering the part of the complaint which relates to the content of the EHC plan. This is because Mrs X used her right to 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.
14. The period we cannot investigate starts from the date the appealable decision is made. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We cannot therefore take a view on whether fault on the Council’s part led to the delay in finalising the matter.

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Final decision

15. We will not investigate Mrs X’s complaint because it is late in part, and Mrs X has used her right to appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman