Summary: We cannot investigate this complaint about the complainant’s child’s Education Health and Care plan and the Council’s failure to make alternative provision while he was unable to attend school. This is because the complainant has used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability), and the law says the Ombudsman cannot intervene.

The complaint

1. The complainant, Mrs X, complains that the Council failed to name an appropriate school in her child’s Education Health and Care (EHC) plan, and failed to make appropriate alternative provision for him when he was unable to attend the school it named.

Back to top

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. 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)
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).

Back to top

How I considered this complaint

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

Back to top

My assessment

9. Mrs X’s child has an EHC plan which was issued in 2025 for transition between phases of education. The Council declined to name the school Mrs X wanted, and named a mainstream school which she says is unsuitable for him. As a result, he was unable to attend.
10. Mrs X appealed to the Tribunal against the content of the EHC plan. The Council subsequently conceded the appeal, but Mrs X says her child was left without any form of education in the interim months. She complains that the Council failed to discharge its duty to make alternative provision, damaging her child’s education and causing her distress and financial loss.
11. The Ombudsman cannot investigate Mrs X’s complaint. It is not for us to express a view on the content of the EHC plan. That is a matter for the Tribunal. The fact that Mrs X has used her right to appeal to the Tribunal means that, by law, we cannot consider a complaint about the content of an EHC plan.
12. 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. This means that if a child is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, 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. Mrs X appealed against the provision set out in the EHC plan, so this restriction applies to her complaint.
13. The period we cannot investigate starts from the date the appealable decision is made. If the parent goes on to appeal, the period we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. Therefore, the lack of alternative provision for Mrs X’s child cannot be investigated. There is no discretion available to us.

Back to top

Final decision

14. We cannot investigate Mrs X’s complaint because she has used her right to appeal to the Tribunal.

Back to top

Investigator's decision on behalf of the Ombudsman