Summary: We cannot investigate this complaint about the actions of the Council during the period between the issue of a final Education Health and Care Plan for Mrs X’s child and the date when the matter was resolved by the Tribunal or by agreement between the two parties. A legal judgement prevents us considering these matters in this period.

The complaint

1. Mrs X says the Council failed in several ways during 2025. She says it:
1. used four SEN caseworkers in the first six months of 2025, affecting the SEND Tribunal process;
2. sent a person to a review meeting in Apr 2025 who could not speak about the Tribunal;
3. submitted out of date documents to a change of placement panel;
4. took more than six weeks to look at documents sent by a school SENCO;
5. failed to prioritise a place at a school that would have met her child’s needs because it was settling other disputes and no place was left;
6. Sent her papers relating to another child’s case; and
7. Failed to deal with her complaint about these matters despite chasing.

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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. The courts have said we can decide not to investigate a complaint about any action by an organisation concerning a matter which the law says we cannot investigate. (R (on the application of M) v Commissioner for Local Administration [2006] EHWCC 2847 (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. All the matters complained of by Mrs X to the Council and to us concern events between early 2025 and the date when her appeal to the Tribunal was resolved via a hearing or a separate agreement between the two parties before the Tribunal date. A legal judgement prevents us considering these matters from the date the Education Health and Care (EHC) Plan appealed against was issued to the date of the tribunal hearing or separate agreement between the parties. It is likely that all or almost all these events fall in that period, given the standard waiting time for an appeal hearing. All these matters concern the nature of the provision to be made for the child, or are related to it, or directly matters relating to the Tribunal.
10. It would not be a good use of resources to investigate how the Council dealt with this complaint as the substantive matters are ones we cannot investigate.

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Final decision

11. We will not investigate Mrs X’s complaint because a legal judgement prevents us considering these matters, and it would not be a good use of resources to investigate the Council’s complaint handling alone.

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Investigator's decision on behalf of the Ombudsman