Summary: We cannot investigate this complaint about the contents of an education, health and care plan and the process followed by the Council because it was reasonable for the complainant to appeal to the First-Tier (Special Educational Needs and Disability) Tribunal.

The complaint

1. Mrs X complains the Council removed transport and therapeutic provision from her daughter’s Education, Health and Care (EHC) Plan, failed to consult her before finalising the plan and provided an inadequate response to her complaint. Mrs X complains her daughter has lost essential therapy and transport.

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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. 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)
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.

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How I considered this complaint

5. I considered information provided by the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Mrs X complains she was not given 15 days to comment on a draft EHC plan for her daughter before it was finalised. The Council’s investigation found two draft Plans were issued in September 2024 and January 2025 before it was finalised in July 2025. We will not investigate this aspect of Mrs X’s complaint because we are unlikely to find the Council at fault.
8. Parents who are unhappy with their child’s EHC Plan have a right of appeal to the Tribunal. We expect parents to use that right unless it is unreasonable for them to do so. It is the mechanism set up by Parliament for parents to challenge the educational provision or the setting named in their child’s EHC Plan. When changes to an EHC Plan are not agreed, the Council can still issue the final Plan.
9. 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). The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.
10. It would have been reasonable for Mrs X to appeal to the Tribunal if she was unhappy with the provision in the EHC Plan. This is because the Tribunal can decide if a Plan should be amended, we cannot.
11. Mrs X also complains about the Council’s complaint handling. We will not investigate how the Council dealt with Mrs X’s complaint as it is not a good use of public resources to investigate complaints about complaint handling when we are not looking at the substantive issue.

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Final decision

12. We cannot investigate Mrs X’s complaint because it would have been reasonable for Mrs X to appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman