Summary: We will not investigate this complaint about the Council’s handling of an Education, Health and Care Plan. This is because it would have been reasonable for the complainant to use her right of appeal to the First-Tier Tribunal (Special Educational Needs and Disability).

The complaint

1. Miss X complains about the Council’s handling of her child’s Education Health and Care plan and special educational provision. She says the Council’s decisions and actions have had a detrimental impact on her child’s education.

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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.
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. 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)

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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. Miss X complains her child has not received a suitable education or specialist provision for three years. She says the Council has not delivered Occupational Therapy and Speech and Language Therapy in line with her child’s Education, Health and Care (EHC) plan.
10. Miss X says her child did not receive Speech and Language Therapy. The Council says the school place and provision, as outlined in the EHC plan, always remained available for the child. The Council says the need for Occupational Therapy was not included in the EHC plan and therefore did not arrange provision.
11. During 2025, the Council carried out three annual reviews of the EHC plan. The outcome from each of these reviews provided Miss X with a decision to either maintain or amend the child’s EHC plan. On the matters that relate to the content of the EHC plan, it was reasonable to expect Miss X to use her right of appeal to the Tribunal. As such, the Ombudsman will not consider this part of the complaint.
12. Miss X says the child’s current school is unable to meet her child’s needs. The matter turns on whether the Council deems the school placement suitable and is in a position to deliver specialist provision. That is not a matter on which the Ombudsman can express a view. The evidence shows that the Council is satisfied the school place meets the child’s needs and support was in place for the family to reintegrate the child. The annual reviews during 2025 resulted in no change to the placement. If Mrs X remains dissatisfied, it is reasonable to expect her to use her right of appeal to the Tribunal.
13. In May 2025 Miss X’s request for Education Other Than At School (EOTAS) was refused. In July 2025, the Council again named the school where the child had remained on roll. It is reasonable to have expected Miss X to use her right of appeal to the Tribunal if she was dissatisfied with Section F and I of the EHC plan.
14. We will not investigate matters which took place before January 2025. This part of the complaint is late and it would have been reasonable to expect Miss X to complain about these matters to the Ombudsman sooner. There are no good reasons for us to consider these matters now.

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Final decision

15. We will not investigate Miss X’s complaint because it would have been reasonable to expect her to have used her right of appeal to the Tribunal. Part of the complaint is late and there are no good reasons to consider these matters now.

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Investigator's decision on behalf of the Ombudsman