The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s handling of Mrs X’s son’s Education, Health and Care Plan annual review. This is because the injustice Mrs X claims stems from the Council’s decision to name a setting she considers is unsuitable to meet her son’s needs and Mrs X has used her right of appeal to challenge this decision.
The complaint
Mrs X complains the Council failed to complete the annual review of her son’s (Y’s) Education, Health and Care (EHC) Plan in 2025. She says the setting named in her son’s EHC Plan cannot meet his needs and the Council has refused to acknowledge this and name a different setting.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect 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 an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended) 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. We may decide to investigate if we consider it would be unreasonable to expect the person to use this right but cannot investigate if they have already used it. (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.
How I considered this complaint
I considered information provided by Mrs X and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
The Council carried out an annual review of Y’s EHC Plan in October 2024 and issued an amended Plan naming a new setting. Mrs X disagreed with the setting named and appealed to the Tribunal; she is currently waiting for its decision on her appeal.
The Council says the setting made a plan to help with Y’s transition but it was not possible the implement all of the agreed actions or for Y to start at the setting because Mrs X and Y did not engage with the process.
Mrs X maintains her view that the setting is not suitable and cannot meet Y’s needs. She says it failed to follow through with plans to manage his medical conditions and she is not satisfied it provides a suitable environment for Y. She asked for an early annual review in the hope the Council would name a different setting but the Council refused to carry one out. It then started the normal annual review a month late, in November 2025.
Mrs X complains the Council did not complete the review but the Council says this is because she did not properly engage with the process, was too distressed to proceed and that ultimately Y’s father asked the Council to stop the process.
The Council says Mrs X did not follow the agreed agenda and wanted only to discuss the decision to name the current setting and her appeal against this decision.
At the heart of this complaint is a disagreement between Mrs X and the Council about whether the setting named in Y’s EHC Plan is suitable. Mrs X has exercised her right of appeal against this decision and the law says we cannot therefore investigate any matter which was part of, 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) While the Council has a duty to review an EHC Plan at least annually the Council has good reasons for not completing the 2025 review and we could not say that had it done so, it would have changed the setting named in the Plan. The Council has made clear its view that the setting remains suitable for Y’s needs and the Tribunal will decide whether its decision is correct in due course.
Had the Council completed the review and named the same setting, as seems likely, Mrs X would have had a further right of appeal but this would not have provided any benefit to her as she had already lodged an appeal. It is therefore unlikely we would recommend any remedy for the issue, even if we could say the Council was at fault for not completing the review.
Final decision
We will not investigate this complaint. This is because it is fundamentally about Mrs X’s disagreement with the setting named in Y’s EHC Plan and Mrs X has used her right of appeal to the Tribunal to challenge this.
Investigator's decision on behalf of the Ombudsman