The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s handling of her son’s Education, Health and Care Plan annual review. This is because the issue concerns the issue concerns the way the Council reached its decision about the contents of his Education, Health and Care Plan and that decision carried a right of appeal to a Tribunal which it would have been reasonable for Mrs X to use.
The complaint
Mrs X complains about the Council’s handling of her son’s Education, Health and Care (EHC) Plan annual review in December 2025. She says the Council failed to properly involve both parents in the process, relied on outdated evidence and failed to consider her son’s needs. She also says she was unable to meaningfully participate in the review due to information disclosed by the Council shortly before the meeting.
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.
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 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. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207) The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.
Mrs X’s complaint concerns the Council’s handling of the annual review process leading to its decisions on what to include in his EHC Plan. She has said that part of what she wants from the Council in recognition of the issues she has raised is to acknowledge fault and correct her son’s EHC Plan.
We cannot say the Council must amend Mrs X’s son’s EHC Plan and we cannot investigate any complaint about council actions which could have been part of an appeal to the Tribunal. This is because the content of the amended EHC Plan and the Council’s decision on what to change or keep the same, following the annual review, carried a right of appeal which it would have been reasonable for Mrs X to use.
I appreciate Mrs X was upset by information provided by the Council about her son’s proposed placement but this issue stems from the placement offered by the Council and Mrs X’s belief that it is unsuitable for her son. It is not therefore sufficiently separate for us to investigate. I must also take account of the Council’s statement that it offered Mrs X the opportunity to pause the meeting but Mrs X declined. Had Mrs X felt unable to properly participate in the meeting/review it was for her to say this at the time and seek to reconvene once she was able.
Mrs X is also unhappy with the way the Council dealt with her complaint. But it is not a good use of public resources to look at the Council’s complaints handling if we are not going to look at the substantive issue complained about. We will not therefore investigate this issue separately.
Final decision
We will not investigate this complaint. This is because the issues raised are too closely related to the outcome of the annual review and the amended EHC Plan carried a right of appeal which it would have been reasonable for Mrs X to use.
Investigator's decision on behalf of the Ombudsman