Summary: We cannot 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 the complaint as we could not add anything significant to the Council’s previous investigation.

The complaint

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

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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. 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…”.
7. 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 we could not add to any previous investigation by the organisation. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

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

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My assessment

10. Mrs X says her child has not been provided with a full-time, suitable education nor has specialist provision been delivered.
11. Mrs X says the Council did not consult with appropriate schools, named an unsuitable school multiple times and did not follow her requests at an annual review. Mrs X appealed to the SEND Tribunal in December 2025.
12. 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.
13. Mrs X complains about the suitability of the school place. She says she would like Education Other than At School for her child. The Council says a suitable school place was always available to the child. The matter turns on whether the Council deems the school placement suitable and can meet the child’s needs. That is not a matter on which the Ombudsman can express a view. It is a matter for consideration at Tribunal.
14. The Council acknowledged Mrs X’s child did not receive education or specialist provision from December 2024 to April 2025 and offered Mrs X a substantial remedy.
15. The Council did not issue an EHC plan in line with statutory timescales. The Council acknowledged this delay and offered Mrs X a remedy.
16. The Council has investigated Mrs X’s complaints and provided her with an adequate and proportionate response. It has offered Mrs X a financial remedy. Mrs X is dissatisfied with the amount offered however, we will not criticise the Council’s remedy as it is broadly in line with what the Ombudsman might recommend for the matters we are not barred from investigating.
17. Mrs X complained to the Ombudsman in January 2026. She has since raised matters with us occurring after that date. Mrs X should raise these concerns firstly with the Council and if not satisfied with its response, can then make a separate complaint to the Ombudsman.
18. Ms X complains about the Council’s handling of her complaint. We do not investigate how a Council has handled a complaint if we are not investigating the subject of the complaint. That is the case here.

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Final decision

19. 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 as investigation would not add anything significant to the response the Council has already made to the complaint and is not therefore warranted.

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Investigator's decision on behalf of the Ombudsman