Summary: We cannot investigate Mrs X’s complaint about the Council’s actions in relation to her daughter Y’s education because it is outside the Ombudsman’s jurisdiction. Parts of the complaint are late, and the remaining matters are not separable from issues that were, or could have been, considered by the SEND Tribunal.

The complaint

1. Mrs X complains the Council failed to arrange suitable education for her daughter Y from October 2021 to June 2024, including failing to secure the special educational provision in her EHCP once it was issued in July 2022. She says the Council left Y at School A for over 14 months after it twice confirmed it could not meet her needs, and did not arrange suitable alternative provision. She says the Council refused her parental preference for School B without a valid reason, delayed acting on the outcomes of two reviews, and handled the tribunal process in a way that caused avoidable delay, including delaying action on a tribunal order to name a school. She also says there were long periods without a caseworker, unanswered correspondence, and no safeguarding checks. Mrs X says these failings caused Y significant educational loss and emotional harm, and caused the family financial loss, emotional distress, and long-term disruption.

Back to top

The Ombudsman’s role and powers

2. 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)
3. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
4. 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).
5. 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…".

Back to top

How I considered this complaint

6. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
7. Mrs X and the Council were offered an opportunity to comment on my draft decision. I considered any comments before making a final decision.

Back to top

What I found

8. I have included a summary of some of the key events relevant to this decision. This is not intended to be a comprehensive account of everything that took place.
9. An Annual Review took place in June 2023. In July 2023, the Council decided not to name Mrs X's preferred school and consulted a number of alternative settings.
10. In September 2023, the Council issued a final EHC Plan continuing to name West Midlands Education and Skills. This decision carried a right of appeal to the First-tier Tribunal (Special Educational Needs and Disability) in relation to sections B, F and I of the EHC Plan.
11. Mrs X registered an appeal with the SEND Tribunal in November 2023. The Tribunal proceedings continued into 2024. The Tribunal concluded in July 2024.
12. Mrs X made a formal complaint to the Council in July 2024. Following the conclusion of the appeal, the Council issued a final amended EHC Plan in August 2024 naming a different school.

Late complaints

13. Mrs X complains about the Council's actions in relation to her daughter Y's education over a prolonged period, including events dating back to 2021. Mrs X made her formal complaint to the Council in July 2024.
14. We normally expect people to complain to us within 12 months of becoming aware of the matters they wish to complain about. This means we would normally only consider events from July 2023 onwards.
15. Mrs X has explained that she did not complain sooner because she was Y's full-time carer, had significant caring responsibilities, and was under considerable pressure while trying to resolve matters directly with the Council. I recognise the challenges Mrs X describes and the impact caring for a child with complex needs can have on a parent's capacity to pursue a formal complaint.
16. However, Mrs X was aware of the issues she now complains about at the time they occurred. She was in ongoing contact with the Council and had sufficient awareness of the matters to raise concerns earlier. I am not persuaded that the reasons given justify exercising discretion to investigate matters dating back more than 12 months before she complained to the Council.
17. I have also considered whether it would now be possible to investigate events further back in time. Given the length of time that has passed, it would inevitably be difficult to investigate proportionately and establish events with the accuracy needed to reach sound and reliable findings.
18. Although July 2023 onwards falls within the normal 12-month period, the Ombudsman's jurisdiction is also limited where a complainant has exercised a right of appeal to a tribunal. I must therefore consider separately whether the matters complained about from that point are ones the Ombudsman can investigate, or whether they are excluded because they were, or could have been, considered by the SEND Tribunal.

Tribunal decision and our decision to end our investigation

19. The substance of Mrs X's complaint is that, over a prolonged period, Y did not receive suitable education because the Council failed to secure an appropriate placement or alternative arrangements, did not act promptly when placements were said to have broken down, and delayed in identifying and naming a suitable school. Mrs X says these matters caused Y significant educational loss and emotional harm, and caused distress and disruption to the family.
20. In September 2023, the Council issued a final Education, Health and Care (EHC) Plan continuing to name West Midlands Education and Skills. This decision carried a right of appeal to the First-tier Tribunal (Special Educational Needs and Disability). Mrs X exercised that right and registered an appeal in November 2023 in respect of sections B, F and I of the EHC Plan. The Tribunal proceedings concluded in July 2024, and the Council issued a final amended EHC Plan in August 2024 naming a different school.
21. The law says we cannot investigate a complaint where the person has appealed to a tribunal about the same matter. We also cannot investigate complaints where doing so would overlap with the role of a tribunal to decide matters which were, or could reasonably have been, considered by it.
22. The issues Mrs X raises about Y not receiving education, the Council's failure to act when placements were said to have broken down, and delay in identifying and naming a suitable school are inextricably linked to questions about Y's placement and the special educational provision specified in her EHC Plan. Those matters were central to the appeal to the SEND Tribunal. I am therefore satisfied that the substance of the complaint is not separable from matters that were, or could reasonably have been, considered by the Tribunal.
23. Mrs X also raises concerns about communication, staffing changes and oversight. However, these matters arise in the context of the Council's handling of Y's education and placement during the same period. Once the substantive elements of the complaint cannot be investigated, I am not satisfied that there would be a meaningful or proportionate outcome in investigating these remaining concerns in isolation. They do not give rise to a distinct or significant injustice that could be remedied separately from the matters considered by the Tribunal.
24. I have also considered whether there is any distinct period within the 12 months before July 2024 that could be investigated separately. The short period between July 2023 and September 2023 coincides with the end of one academic year and the start of the next. During this time, the Council's recorded actions relate to consideration of placement options following the June 2023 review and the issuing of a final Education, Health and Care Plan, which gave rise to appeal rights. I am not satisfied there is a meaningful or proportionate element of the complaint from this period that can be investigated separately. The period is short, largely falls outside the normal academic year, and does not give rise to any distinct or significant injustice that could be remedied independently of the matters that were later appealed.
25. For these reasons, I have ended my investigation. Parts of the complaint are late, the remaining matters are outside the Ombudsman's jurisdiction, and there is no distinct element that can be investigated meaningfully or proportionately.

Consideration of comments

26. I have carefully considered the points Mrs X raised in response to my draft decision, including her submissions about discretion on lateness and her view that several elements of the complaint fall within the Ombudsman's jurisdiction.
27. Mrs X argues that matters such as failures in the review process, alternative education duties, personal budget decision-making, safeguarding oversight and complaint handling are discrete issues the SEND Tribunal could not consider. I have considered these points carefully. However, I remain satisfied that the substance of the complaint concerns the Council's handling of Y's education and whether it should have acted differently in relation to Y's placement or provision during the period when appeal rights existed. Investigating these issues would require the Ombudsman to consider whether different provision or a different placement should have been secured earlier. Those questions are inextricably linked to matters that were, or could reasonably have been, considered by the SEND Tribunal as part of its consideration of Y's needs, the provision required to meet those needs and the appropriate placement.
28. I have also reconsidered whether there are good reasons to exercise discretion to investigate matters dating back more than 12 months before Mrs X complained to the Council. While I recognise the caring responsibilities Mrs X describes and the impact on her family, I remain satisfied that it would not be reasonable or proportionate to investigate events dating back several years.
29. Finally, I have considered whether any element of the complaint could be investigated separately. Once the substantive matters relating to Y's education and placement are excluded from investigation, I am not satisfied that investigating the remaining issues in isolation would lead to a meaningful or proportionate outcome.

Back to top

Decision

30. We cannot investigate Mrs X's complaint about the Council's actions in relation to her daughter Y's education because it is outside the Ombudsman's jurisdiction. Parts of the complaint are late, and the remaining matters are not separable from issues that were, or could have been, considered by the SEND Tribunal.

Back to top

Investigator's decision on behalf of the Ombudsman