Summary: We will not investigate Ms X’s complaint that the Council failed to provide suitable educational provision for her child. Some of the complaint is late, and Ms X has a right of appeal to Tribunal that it is reasonable for her to use.

The complaint

1. Ms X complained that her child, Y, has been out of school for two years. During this time, the Council has failed to meet its statutory duties to Y under Section 19 Education Act 1996 and Section 42 Children and Families Act 2014.
2. Ms X said that Y needs to be in a school setting that can meet his needs. So far, the Council have been unable to provide such provision, and have not ensured that his special educational needs have been met during this time.

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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 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)

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How I considered this complaint

6. I considered information provided by Ms X and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Some of Ms Y’s complaint to us extends beyond 12 months ago. We will not consider these aspects of her complaint. Ms Y could have complained to us sooner about these issues, and I have seen no good reason to exercise my discretion to consider them now.
9. The First-tier Tribunal (Special Educational Needs and Disability – SEND) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
10. A parent has a right of appeal about the content of a finalised Education, Health and Care (EHC) Plan, about the provision specified in Section F and if no school or setting is named in Section I.
11. Y’s final EHC Plan in 2024 notified Ms X of her right to appeal to Tribunal if she disagreed with the content. The Council said that Ms X did not appeal.
12. We will not investigate Ms X’s complaint. This is because it is reasonable for Ms X to have used her right of appeal to the Tribunal. Only the Tribunal can order the Council to make changes to Y’s EHC Plan. The educational provision provided to Y is not separable from this appeal right.
13. Y’s final EHC Plan in 2025 has notified Ms X of a further right to appeal to Tribunal. It is reasonable to expect Ms X to use this right.

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Final decision

14. We will not investigate Ms X’s complaint. Some of the complaint is late, and there is an appeal right to Tribunal.

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Investigator's decision on behalf of the Ombudsman