Summary: We will not investigate part of Mrs X’s and Mr Y’s complaint about the Council’s failure to secure an education for their child or the content of their EHC Plan because it is late. We will not investigate part of the complaint because Mrs X and Mr Y had a right to appeal to a tribunal. We cannot investigate part of the complaint because Mrs X and Mr Y appealed to a tribunal. We will not investigate the remainder because there is no worthwhile outcome.

The complaint

1. Mrs X and Mr Y complained the Council failed to:
1. provide education to their child, Z, since February 2023;
2. secure the content of Z’s Education, Health and Care (EHC) Plan since January 2024;
3. adhere to statutory timescales regarding Y’s Education, Health and Care needs assessment in 2023; and
4. communicate effectively.
2. Mrs X and Mr Y say this caused distress and frustration. They say Z missed out on their education as a result.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. 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.
6. 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)
7. 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)
8. 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)

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How I considered this complaint

9. I considered information provided by the complainant.
10. I considered the Ombudsman’s Assessment Code.

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My assessment

Background

11. In January 2023 Z was Electively Home Educated (EHE). In the summer of 2023 Mrs X and Mr Y asked the Council to conduct an EHC needs assessment of Y. The Council initially refused, then agreed at mediation in October 2023 to complete the EHC process. The Council made a final EHC Plan for Z in January 2024 naming Elective Home Education (EHE) in section I. Neither Mrs X nor Mr Y appealed the content of this EHC Plan.
12. In April 2024 the Council held an early EHC annual review at the request of Z’s parents. The outcome of the review was to maintain the EHC Plan, with EHE in section I. Neither Mrs X nor Mr Y appealed the content of this EHC Plan.
13. In July 2024 the Council held another early EHC annual review. It decided to maintain the EHC Plan naming EHE in section I. However, it determined EHE was not suitable and arranged 10 hours of tuition per week from August 2024. Mrs X and Mr Y appealed the content of this EHC Plan to the SEND Tribunal.

Matters before May 2024

14. Mrs X and Mr Y complained to the Ombudsman in May 2025. Some of the issues they complained about happened more than 12 months before this date.
15. The law says we cannot investigate complaints older than 12 months from the date the person complaining had notice of the issue complained about unless we decide there are good reasons.
16. I have seen no good reasons Mrs X and Mr Y could not have complained about matters that happened before May 2024 sooner. This includes:
1. any alleged delay in the Education, Health and Care needs assessment – the process of which finished in early 2024; and
2. any issues relating to Z’s education before May 2024.
17. Mrs X and Mr Y were aware of the issues more than 12 months before this date. Consequently, we will not exercise discretion to consider matters that happened before May 2024.

Matters after May 2024

Early EHC annual review April 2024

18. Z’s new final EHC Plan was made after the April 2024 annual review. Mrs X and Mr Y said the reason their child did not receive an education was because section I named EHE, which they say was unsuitable.
19. We will not investigate how the Council secured and delivered the content of Z’s EHC Plan between May 2024 and July 2024. This is because Mrs X and Mr Y had the opportunity to appeal the content of this EHC Plan to the SEND Tribunal.
20. Mrs X and Mr Y were already dissatisfied with what they believed was a lack of progress by the Council to secure a suitable education for their child following the final EHC Plan made in January 2024. Only the Council or the SEND Tribunal can change the named placement in section I.
21. Therefore, it was reasonable to expect them to have used their right of appeal once it became available. Consequently, we will not exercise our discretion to investigate this period.

Early EHC annual review July 2024

22. Following the further EHC annual review held in July 2024 Mrs X and Mr Y used their right to appeal the content of the EHC Plan to the SEND Tribunal. This included the Council’s decision to name EHE in section I of the EHC Plan.
23. We cannot investigate how the Council delivered the content of Z’s EHC Plan to them after the decision notice was sent following the July 2024 annual review. This is because the reason Z did not receive the content of their EHC Plan is too closely related to the matter appealed.
24. Because the Tribunal will decide the most suitable placement for Z including the EHE element, the Ombudsman has no authority to investigate this matter.

Poor communication

25. Mrs X and Mr Y complained the Council’s communication was poor.
26. In its complaint response the Council upheld this complaint. It said that, at times, it had failed to respond to questions in a timely manner. In response, the Council said it would remind staff that where they cannot provide an update within a set timescale that they will acknowledge emails within a “reasonable timescale for a response”.
27. As the Council upheld the complaint and explained service improvements it made, an investigation into this matter is unlikely to achieve any significantly different outcome, and so we will not investigate.

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Final decision

28. We will not investigate part of Mrs X’s and Mr Y’s complaint because it is late. We will not investigate part of the complaint because Mrs X and Mr Y had a right to appeal to a tribunal. We cannot investigate part of the complaint because Mrs X and Mr Y appealed to a tribunal. We will not investigate the remainder because there is no worthwhile outcome.

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Investigator's decision on behalf of the Ombudsman