Summary: We cannot investigate this complaint about educational provision because Ms X has appealed to the First-Tier (Special Educational Needs and Disability) Tribunal.

The complaint

1. Ms X complains about the Council’s refusal to add a particular provision to her child’s Education Other Than At School (EOTAS) package specified in her Education, Health and Care (EHC) Plan. Ms X says the Council has applied policy inconsistently because other children have been funded to attend the provision. Ms X also complains the Council has failed to deliver provision as outlined in her child’s EHC Plan.

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.

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 cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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. 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

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

Back to top

My assessment

8. The Council maintains an EHC Plan for Ms X’s child. Ms X is unhappy about the Council’s decision not to include a particular provision in her child’s EOTAS package. We cannot investigate this complaint because it is reasonable for Ms X to appeal to the Tribunal because it can decide if a Plan should be amended, we cannot. I understand Ms X has appealed the EHC Plan issued by the Council in August 2025.
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. We also cannot investigate Ms X’s complaint about the Council failing to deliver provision from Section F of the child’s EHC Plan because the matter is linked to the appeal.

Back to top

Final decision

11. We cannot investigate Ms 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