The Ombudsman's final decision
Summary: We cannot investigate this complaint about the Council’s decisions not to carry out an Education, Health and Care needs assessment for her child because she has exercised her right of appeal to the Tribunal. We will not investigate Mrs X’s complaint about the Council’s refusal to provide alternative educational provision for her child because the complaint is late and it would have been reasonable for Mrs X to raise it with us sooner.
The complaint
Mrs X complains the Council wrongly refused to assess her child for an Education, Health and Care (EHC) Plan in 2023. She says she provided overwhelming evidence to show they needed a Plan as part of the mediation process but the Council declined to change its decision.
Mrs X appealed against the Council’s decision and the Tribunal upheld her appeal. The Council then issued an EHC Plan but Mrs X disagreed with the contents of the Plan and appealed again. The Tribunal granted a package of educational otherwise than at school (EOTAS) in December 2025 but Mrs X says it took too long to reach this point.
Mrs X also complains the Council refused to provide education for her child under Section 19 of the Education Act 1996 when they were unable to go to school and failed to properly monitor the part-time timetable put in place for them in March 2025.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (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.
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)
How I considered this complaint
I considered information provided by Mrs X and the Ombudsman’s Assessment Code.
My assessment
The courts have established that if someone has appealed to the Tribunal 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) We cannot therefore investigate any complaint about the Council’s decision not to carry out an assessment in 2023 or about the contents of the EHC Plan issued in 2024. We also cannot investigate the way the Council reached its decisions, including how it considered the evidence provided by Mrs X and whether it should have changed its decision as part of the mediation process.
There was no right of appeal against the Council’s decision not to arrange alternative educational provision for Mrs X’s child under Section 19 of the Education Act 1996 but Mrs X’s complaint about the issue is late. The Council notified Mrs X of its decision in October 2024 but Mrs X did not complain to us about it until January 2026. I have seen no good reasons for the delay in bringing the complaint to us and I will not therefore exercise my discretion to investigate this complaint.
Mrs X has also raised concerns about part-time tuition put in place for her child from March 2025 but I am not satisfied the Council has had a reasonable opportunity to respond to this issue and I have therefore declined to consider it further at this time.
The Council responded to Mrs X’s Stage 1 complaint in January 2025 and Mrs X asked to escalate it to Stage 2 of its complaints procedure more than a year later, in February 2026. Her escalation request stated she was complaining about “the Council’s actions prior to and during the statutory assessment and decision-making processes”. But she also claimed the Council had failed to properly monitor the provision in place for her child from March 2025, which was a new issue that was not part of the original Stage 1 complaint and only occurred after the Council’s Stage 1 complaint response.
I am not therefore satisfied that Mrs X has followed the proper process to raise this issue or that it would be fair or appropriate to consider it further now.
If Mrs X wishes to pursue the issue she should make a new Stage 1 complaint to the Council about the adequacy and oversight of the tuition, along with any other new concerns which have arisen since her original complaint. If Mrs X is not satisfied with the Council’s response to this complaint she may refer it to us as a new complaint and we will decide whether to investigate it.
Final decision
We will not investigate this complaint. This is because the issues Mrs X raises fall outside our jurisdiction.
Investigator's decision on behalf of the Ombudsman