The Ombudsman's final decision
Summary: We cannot investigate this complaint about the Council’s handling of a child’s Education, Health and Care plan. This is because the complainant has used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) and the Courts have decided that the Ombudsman cannot intervene where the right to appeal has been used. We will not investigate part of the complaint because it is reasonable for the complainant to raise these matters in court. We will not investigate part of this complaint as we could not add to the Council’s previous investigation.
The complaint
Ms X complains about the Council’s handling of her child’s Education, Health and Care (EHC) plan. She says her child’s special educational needs have not been met which has affected their progress. She says the Council has behaved in a discriminatory way towards her family. Ms X also complains about the way the council has handled her complaint about the matter.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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) 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…”.
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.
The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended) 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 further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Ms X’s child has been receiving Education Other Than At School (EOTAS). Ms X used her right to appeal to the SEND Tribunal as she was not satisfied with her child’s EHC plan. In February 2025, prior to the Tribunal, the Council did an annual review. Ms X says she does not think the annual review was conducted correctly and documents and discussions were not used to inform the child’s EHC plan. Tribunal hearings took place in March and April 2025.
Ms X says key information, such as her child’s views and opinions from professionals were omitted when compiling content for the EHC plan that was determined at the Tribunal. If Ms X had concerns about the information used to inform the EHC plan, she could have raised this at the Tribunal. 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. As such, the Ombudsman cannot consider this part of the complaint.
Ms X says the Council behaved in a discriminatory way and did not give regard to the Equalities Act 2010. We have no power to decide if a council has discriminated against someone. It would be reasonable for Miss X to make a discrimination claim in court.
Ms X complains about the Council’s actions following the tribunal. This includes a meeting that was cancelled at short notice and queries about school meals, a laptop, reimbursements for fuel costs and payment for provision the Council had not agreed to. The Council has investigated these and other matters and its response is reasonable and proportionate. An investigation by the Ombudsman could not add anything significant to the Council’s investigation. We therefore will not investigate this part of the complaint.
Ms X has raised further concerns to the Ombudsman about matters that occurred after she complained to the Council in June 2025. This includes the lack of provision her child is receiving. Ms X should first exhaust the Council’s complaints process and if not satisfied with its response, she can raise these matters with the Ombudsman.
Ms X complains about the Council’s handling of her complaint. It is not a good use of our resources to investigate how a Council has handled a complaint if the substantive matter does not fall to be investigated. That is the case here.
Final decision
We will not investigate Ms X’s complaint. Part of the complaint relates to a matter for which Ms X has used her right of appeal to the Tribunal. It is reasonable for Ms X to go to court about part of the complaint. An investigation would not add anything significant to the response the Council has already made to the complaint and is therefore not warranted.
Investigator's decision on behalf of the Ombudsman