Summary: We cannot investigate this complaint about the handling of the Education, Health and Care Plan process by the Council because the complainant has used her right to appeal to the Tribunal.

The complaint

1. Ms X complains about the way the Council dealt with the Education, Health and Care (EHC) Plan process for her son, Y.

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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. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 

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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. The Council named a mainstream school, School B, in Section I of Y’s EHC Plan. Y was due to attend School B from September 2025 but Ms X says he was left without a suitable education and provision. Ms X was unhappy with the Council’s decision to name School B and she appealed Section I of the EHC Plan to the Tribunal.
10. Ms X has advised us that the Council has now agreed to name School C in Y’s EHC Plan. Ms X is happy for her son to attend this school and the appeal proceedings have now concluded. There is nothing further an investigation by us could achieve for Ms X.
11. Ms X is of the view the Council could have named School C earlier and avoided a period of time her son was without provision.
12. We cannot investigate Ms X’s complaint. 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. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
13. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.

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Final decision

14. We cannot investigate Ms 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