The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s handling of an Education, Health and Care assessment. 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.
The complaint
Ms X complains about the Council’s decision to refuse her child an Education, Health and Care (EHC) plan. Ms X says the Council’s refusal has impacted both her and her child’s mental health, as well as her child’s education. Ms X wants the Council to provide her child with support and an education.
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 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) 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) 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.
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…”.
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)
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
Miss X complains the Council has allowed her child to fall behind for years. Ms X complained to us in January 2026, and I have seen no reason she could not complaint to us sooner. So the restriction in paragraph three applies and we will not investigate the Council’s actions prior to January 2025.
The Council refused to issue an EHC Plan for Ms X’s child. This decision triggered a right for Ms X to appeal to the Tribunal, which she has used.
The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, or connected to, or could have been part of, the appeal to the Tribunal. This includes the Council’s related actions leading up to the decision. So, the law says we cannot investigate this complaint.
Final decision
We will not investigate Ms X’s complaint because she has already used her rights of appeal to the Tribunal.
Investigator's decision on behalf of the Ombudsman