Decision : Closed after initial enquiries
Decision date : 16 May 2019
The Ombudsman's final decision:
Summary: The Ombudsman should not investigate Mrs X’s complaint that she incurred costs in appealing to SEND. It is reasonable to expect Mrs X to have used her right to ask the Tribunal to order the Council pay her costs.
- The complainant, whom I shall call Mrs X, says the Council failed to provide her child, B, with an education which met their needs. And she says she needlessly incurred costs in gaining an Education Health and Care Plan (EHC Plan).
The Ombudsman’s role and powers
- 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)
- The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
- We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
- We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
How I considered this complaint
- I considered the information Mrs X provided with her complaint which included the Council’s reply. Mrs X had an opportunity to comment on a draft version of this decision.
What I found
- Mrs X is B’s mother. B is now 25. B has a learning disability. Mrs X says that before 2015 the schools B attended did not provide B with the support and aid they needed. She says the Council did not help.
- In 2015, Mrs X says she appealed the Council’s decision not to give B an EHC Plan to the Tribunal, SEND. It ordered the Council to produce an EHC Plan. Mrs X says she incurred costs in appealing.
- The Council has refused to investigate Mrs X’s complaint as the events are more than 12 months old.
- We cannot investigate how a school provides education and support to a pupil who does not have an EHC Plan.
- B is now 25 and any complaint about a failure to educate them would need to be from B. And they would need to show good reasons why we could investigate such old events.
- We cannot investigate events which have been known to Mrs X for more than 12 months without good reasons. Mrs X has been fighting a life threatening condition since 2015.
- Mrs X has a right to claim her costs within the Tribunal proceedings. Parliament set up that remedy, and right, and it is reasonable to expect Mrs X to have used it at the time of the appeal.
- The Ombudsman should not investigate this complaint. This is because it is reasonable to expect Mrs X to have applied to the Tribunal for her appeal costs.
Investigator's decision on behalf of the Ombudsman